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Chambers 


Speech  of  Judge  Chambers, 
on  the  Judicial  Tenure,  in 
the  Maryland  Convention, 
April,  lb51 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


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SPEE 


O  F 


Mm  €lmkm 


O  N     T  H  E 


JUDICIAL  TENURE, 


IN     THE 


MARYLAND  CONVENTION, 


APRIL,     1851. 


BALTIMORE: 
PRINTED     BY    JOHN    MUIIPHY    k.    CO 

PATENT  ROTARY  PRINTING  MACHINE, 

JNo.    178     MARKET     STREET. 

18  5  1. 


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n,m 


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SPEECH 


O  F 


JUDGE  CHAMBERS, 


ON    THE 


JUDICIAL  TENURE, 


I  N    T  H  E 


MARYLAND  CONVENTION, 


APRIL,     185  1, 


BALTIMORE: 
PRINTED    BY    JOHN    MURPHY    &    CO 

PATENT  ROTARY   iPRINTING  MACHINE, 

No.    178    MARKET     STREET. 
185  1. 


■XM 


^ 


SPEECH  OF  JUDGE  CHAMBERS. 


Judge  Chambers,  after  alluding  to  various  statements  made  by 
Mr.  Bowie,  and  several  other  gentlemen,  in  reference  to  the  sup- 
posed state  of  public  opinion  on  the  subject  of  the  Judiciary,  in 
different  parts  of  the  State,  proceeded  to  say : — 

Mr.  President: — My  solo  purpose,  in  reviewing  those  allega- 
tions, is  to  show,  that  the  argument  of  the  important  question,  upon 
which  we  are  called  to  act,  should  be  based  upon  other  grounds 
than  such  statements  of  opinion — that  they,  in  fact,  prove  nothing. 
The  gentleman,  indeed,  after  alluding  to  them,  admits  this;  and 
properly  enough  says,  we  ought  to  give  tone  to  popular  sentiment. 
We  are  here,  not  as  the  mere  creatures  of  a  particular  party  or 
class  of  men,  to  be  driven  against  our  convictions,  by  a  supposed 
current  of  public  sentifiient  running,  in  this  direction,  or  in  that. 
We  are  placed  here,  to  perform  high  and  solemn  duties — duties 
which  are  to  aflcct  the  interests,  the  security,  the  well-being  of  so- 
ciety, in  all  respects,  and  for  all  time.  In  discharging  these  duties, 
the  most  sacred  obligations  demand,  that  we  exercise  our  grave  and 
deliberate  judgments.  The  responsibility  we  owe  to  the  community 
cannot  be  met  by  adopting  a  course  approved  by  others;  if  it  be 
not  commended  to  our  own  judgments,  by  a  conviction  of  its 
propriety. 

My  object  then,  in  alluding  to  the  remarks,  T  have  noticed,  is 
to  express  my  humble  opinion,  that  such  considerations  ought  not 
to  disturb  the  operation  of  our  minds,  in  coming  to  conclusions, 
upon  this  subject.  There  are,  in  my  view,  far  higher,  greater,  and 
more  important  considerations.  According  to  my  judgment,  there 
has  not  been,  there  is  not,  nor  will  there  be,  any  question  before 
this  body,  which  can  in  any  degree,  be  compared  with  this,  in  the 
■^  magnitude,  in  the  extent,  in  the  duration  of  its  results  and  con- 
^      sequences,  for  good  or  for  evil.    I  wish  I  could  flatter  myself,  with 


1503105 


the  expectation  of  drawing  the  attention  of  the  House,  to  the 
views,  I  would  present.  I  am  sensible,  that  very  strong  impres- 
sions have  been  indulged  by  many;  and  equally  sensible,  that 
tliese  deep-seated  and  long  indulged  opinions  are  hardly  to  be 
changed.  Still  I  feel  it  my  duty  to  give  the  result  of  my  best  and 
most  anxious  reflections. 

In  the  discussion  of  this  subject,  I  am  quite  willing  to  follow 
the  lead  of  the  gentleman,  who  has  opened  the  debate  ;  and  com- 
mence with  the  original,  elementary,  universally  acknowledged 
principle,  recognized  by  the  Declaration  of  Rights,  as  the  doctrine 
of  our  Fathers,  and  worthy  of  acceptation,  for  all  time,  as  the 
foundation  of  a  republican  Creed.  The  first  Article  of  that  Instru- 
ment declares,  and  the  whole  Constitution  assumes,  "  that  all  gov- 
ernment of  right  originates  from  the  people,  is  founded  in  compact 
only,  and  instituted  solely  for  the  good  of  the  whole."  The 
second  declares,  that  the  people  ought  to  have  the  sole  and  exclu- 
sive right  of  "  regulating  "  and  controlling  the  governinent.  No 
man  in  this  State,  no  one  in  this  body,  or  out  of  it,  will  avow,  as 
his  own,  or  propose  to  another,  any  other  political  Creed.  All, 
every  where,  admit  the  sovereign  power  of  the  people,  to  control 
their  own  government.  Now  what  is  the  government,  which  the 
people  can  thus  regulate?  What  are  its  objects — what  its  de- 
signs? The  error  of  the  gentleman's  argument — a  very  com- 
mon error — is,  that  the  Government  is  designed,  solely  to  pro- 
tect the  rights  of  the  majority  of  the  people,  at  any  given  pe- 
riod. That  is  not  the  spirit  of  our  Declaration  of  Rights;  nor 
is  it  consistent  with  the  true  theory  of  government.  The  doctrine 
of  the  Declaration — and  the  sound  doctrine — is,  that  Government 
is  designed  for  the  good  of  the  "  whole,"  not  of  a  "  majority." 
Government  is  a  system  of  restraints,  not  of  indulgences.  Man, 
without  its  restraints,  is  thrown  for  protection  upon  his  own 
strength ;  with  no  arbiter  of  his  rights,  but  his  own  will,  and  his 
own  passions;  and  no  means  to  enforce  them,  but  violence.  Of 
course,  in  proportion  to  his  physical  ability,  there  is  peril  to  the 
rights  of  those,  who  are  unable  to  protect  themselves.  The 
prejudices  and  passions  of  men,  excited,  and  operated  upon,  by 
motives  of  interest,  ever  have,  ever  will,  and  necessarily  must, 
occasion  conflicting  opinions,  with  regard  to  their  rights  and 
claims.  Without  government,  these  conflicts  must  be  determined 
by  force;  there  is  no  other  appeal.  The  object  of  government, 
is  to  substitute,  for  this  force,  a  system  of  rules  or  laws,  by  which 
all  such  conflicts  may  be  determined ;  to  establish  an  authority, 


before  which  a  fair  investigation  can  be  had;  and  by  which,  means 
are  devised  to  give  effect  to  the  decisions  which  shall  be  made, 
according  to  these  rules ;  founded,  as  they  profess  to  be,  upon 
great  principles  of  Truth,  and  Justice.  The  peculiar  objects  of 
the  protection  and  care  of  government,  are  those,  therefore, 
who,  without  it,  would  be  exposed  to  wrong,  and  violence.  The 
strong  man  armed,  needs  no  aid-  He  can  determine,  for  himself, 
his  own  rights ;  he  can  defend,  and  enforce  them.  It  is  to  the 
feeble,  to  the  oppressed,  that  government  is  necessary.  It  is  the 
conviction  of  this  necessity,  which  causes  men  to  associate,  to 
form  societies  for  mutual  protection,  and  to  establish  settled  govern- 
ments. Majorities  are  strong:  they  are  able  to  redress  their  sup- 
posed wrongs,  and  enforce  what  they  consider  their  rights.  The 
restraints  of  government  are  felt  by  them,  and  required  to  control 
them.  The  rules  of  government — rules,  which  protect  the  rights 
of  all — are  required  for  the  protection  especially  of  the  humble, 
the  obscure,  and  the  impotent — of  those,  in  other  words,  who 
constitute  the  minority  of  a  community. 

Another  view,  which  has  been  presented  by  the  gentleman,  of 
the  doctrine  of  our  Declaration  of  Rights,  has  no  foundation 
in  truth.  The  idea  is,  that  the  people — meaning  thereby,  a  nu- 
merical majority — have  the  right  to  control  the  government,  by 
becominor  the  actual  agents  in  its  administration,  without  the  in- 
tervention  of  officers,  agents,  or  trustees,  by  and  through  whom, 
their  delegated  powers  are  to  be  exercised. 

If  a  community  of  men  choose  to  form  such  a  government, 
one,  by  the  terms  of  which,  the  whole  mass  is  to  be  assembled, 
on  every  occasion,  for  the  exercise  of  the  functions  of  govern- 
ment, and  in  such  mass  meetings,  and  such  alone,  to  decide  upon 
every  question  which  may  arise;  doubtless,  they  have  the  power 
to  do  it.  But  what  I  maintain,  is  this : — I  maintain,  that  such  is 
not  the  spirit  nor  the  letter  of  our  system  ;  neither  countenanced 
by  the  Declaration  of  Rights,  nor  by  the  Constitution  ;  nor  was  it 
thought  of,  by  those,  who  constructed  these  noble  monuments  of 
political  wisdom  ;  nor  indeed  by  any  one  since  their  day. 

If  the  imputed  and  admitted  sovereignty  of  the  people  is  to  be 
vindicated,  in  such  a  case  as  the  one  before  us,  (the  selection  of 
a  judicial  department)  only  by  taking  into  their  own  hands  (the 
hands  of  a  majority)  the  immediate  and  direct  appointment  of  that 
department; — if  (as  is  alleged)  it  be  a  deprivation,  in  any  degree, 
of  the  rights  of  that  sovereignty,  to  delegate  the  power  of  selec- 
tion, to  agents  appointed  for  that  purpose; — why  is  not  this  sov- 


ereignty  assailed,  and  impaired,  by  delegating  to  agents  the  power 
to  perform  any  other  duty,  which  the  people  themselves  can  do 
when  assembled  in  mass?  The  direct  and  legitimate  result  of 
such  a  theory  is.  to  require  a  dissolution  of  all  society  into  an 
absolute,  unqualified,  unmixed  democracy,  such  as  can  exist  only 
in  a  community  composed  of  some  few  families  of  men.  If  such 
a  doctrine  be  at  all  tenable;  then,  in  short,  the  people  are  not  id 
elect  a  Judge.  No,  Sir,  they — that  is,  a  mojority  of  the  people — 
must  act,  as  Judge.  If  the  people's  sovereignty  is  made  to  con- 
sist, not  in  organizing  and  forming  their  own  government,  dis- 
tributing their  powers  between  the  different  departments  required 
for  its  administration  ;  if  to  delegate  power  to  agents,  and  offi- 
cers, whether  that  power  be  to  make  appointments  of  other  agents, 
or  to  perform  any  other  duty;  if  this  be  to  abridge  the  rightful 
power  of  the  people  —  then  the  delegation  of  the  power  to 
judge  and  decide  upon  questions,  which  constantly  occupy  the 
Courts,  and  form  the  subjects  of  their  ordinary  jurisdiction,  is 
equally — equally — an  infringement  of  the  people's  rights.  Yes, 
Sir.  And  then  also  are  we  here,  usurping  the  just  rights  of  the 
people.  For  we  too  are  delegated  by  the  people  to  perform  at 
least,  in  part,  a  duty  very  much  more  appropriately  within  the 
sphere  of  action  suited  to  the  viass  of  a  community,  than  the  ap- 
pointment of  a  judicial  officer,  or  the  exercise  of  judicial  func- 
tions. Such  a  doctrine  would  impeach  every  act  and  measure  of 
the  government  not  only  of  Maryland,  but  of  every  other  State  in 
this  Union  ;  yes.  Sir,  of  every  civilized  government,  that  has  ever 
existed  I  In  all,  it  has  been,  and  ever  will  be,  found  necessary  to 
organize  departments;  and  to  vest  them  with  appropriate  adminis- 
trative powers;  executive,  legislative,  and  judicial.  The  American 
Doctrine  is,  not  only  that  the  sovereign  power  of  the  people  is 
adequate  to  direct  —  '^regulate" — control  this  distribution  of 
power;  not  only  that  the  sovereignty  of  the  people  is  the  fountain 
of  all  power; — but  that  the  people  have  "the  sole  and  exclusive 
right  of  regulating  it," — according  to  the  letter  of  our  well  ex- 
pressed Bill  of  Rights.  It  is  the  "government,''  they  are  to 
"regulate ;''  it  is  not  for  them  to  execute,  {in  mass,)  the  duties 
and  offices  created  by  the  government.  Government  is  the 
compact,  or  system  agreed  upon,  or  (if  you  prefer  the  term) 
devised  by  men  associated  in  Civil  Societies ;  which,  in  a  coun- 
try blessed  like  ours,  with  a  written  Constitution,  prescribes 
certain  organic  laws,  or  rules,  as  fundamental  articles  of  asso- 
ciation ;  and  provides  the  machinery  necessary  to  execute,  and 


enforce  these  organic  laws,  and  such  others,  as  may  be  found 
essential.  The  machinery,  without  which  an  administration 
of  these  laws  would  not  be  possible,  consists  of  the  various 
departments,  and  their  incidental  details.  Tiie  organization 
must  be  complete;  the  machinery  must  be  of  a  character  to 
operate  effectually.  When  it  is  found  defective,  the  sovereign 
power — the  people — may  re-model,  may  again  organize,  again 
"regulate"  the  "government;"  and  having  done  so,  again 
leave  it  to  be  worked  out,  in  all  its  completeness,  by  the  adminis- 
trative branches  constructed,  for  that  purpose,  by  their  agents  and 
officers.  To  require  the  sovereign  power — the  people  in  mass — 
to  perform  these  duties  of  administration,  would  dispense  with 
the  necessity  of  government  altogether.  If  such  a  thing  were 
indeed  practicable,  all  Constitutions,  all  Laws,  all  formal  Govern- 
ments could  no  longer  exist.  If  we  suppose  their  existence  pos- 
sible, they  would  at  least  be  useless! 

The  sovereign  power  of  the  people  would  be  embodied,  when- 
ever action  was  to  be  had,  and  neither  Constitution  nor  law  could 
resist  or  op-pose  their  sovereign  will !  That  will  vvould  be  Consti- 
tion  and  law  above  all  restraint;  and  include,  in  itself,  legislative, 
executive,  and  judicial  authority.  Sir,  is  this  theory  attractive, 
which  yields  results  so  full  of  mischief?  But  fortunately,  it  is  as 
impracticable,  as  it  is  mischievous.  The  government  of  the  United 
States  originates  from  the  supreme  sovereign  power  of  the  people 
of  the  United  States.  They  are  as  supreme  and  sovereign  in 
relation  to  that  government  as  the  people  of  Maryland  are  in  rela- 
tion to  our  State  government.  There  is  as  much  moral  and  poli- 
tical propriety  in  respecting  their  rights,  as  there  is  in  repecting 
the  rights  of  the  people  of  Maryland.  If  it  be  a  gross  violation 
of  ritrhts  to  deleofate  powers  of  government  in  the  one  case,  it  is 
equally  so  in  the  other.  And  now.  Sir,  fancy  such  a  thing,  as  an 
attempt,  on  the  part  of  the  good  people  of  this  great  Nation 
of  almost  boundless  extent,  reaching  from  the  borders  of  China 
to  the  Gulf  of  St.  Lawrence — fancy  this  mass  of  human  beings 
scattered  over  this  extended  area,  claiming  to  exercise,  in  person, 
those  functions  of  administration  which  they  insist  are  a  por- 
tion of  their  jusi  prerogative  —  claiming,  in  the  language  of  the 
gentleman,  "  a  restoration"  of  their  rights!  "a  restorntion!" 
Why,  Sir,  when  have  the  people  ever  exercised  such  rights? 
Never — never!  The  claim  now  preferred  is  a  novelty,  and  one 
of  late  date  too.  How  did  our  Fathers  understand  it?  I  have 
attempted    to    explain    what   our   Bill   of  Rights  declares,   what 


8 

our  Maryland  Fathers  designed  ;  but  it  will  require  no  elucida- 
tion, to  show  what  was  the  understanding  of  the  Sages,  who 
declared  the  Independence  of  the  Nation,  as  well  as  the  Rights 
of  the  people ;  and  who  subsequently  poured  out  their  treasure 
and  their  blood  in  defence  of  those  Rights.  In  the  very  first 
clause  enumerating  the  causes  of  separation  from  the  British 
government,  and  setting  forth  what  are  inalienable  Rights,  it  is 
declared,  that  " /o  secure  those  rights,  governments  are  instituted, 
deriving  their  just  powers  from  the  consent  of  the  governed ;^' 
that  is,  the  people; — "and  whenever  any  form  of  government  be- 
comes destructive  of  these  ends,  it  is  the  right  of  the  people  to 
abolish  it  and" — to  do  what,  Sir? — administer  it,  themselves?  Not 
at  all.  What  they  wished  to  do,  in  such  case,  was  "  to  institute  a 
new  government  " — "  organizing  its  power,  in  such  form,  as  to  them 
shall  seem  most  likely  to  effect  their  safety  and  happiness" — "  to 
provide  new  guards  for  their  future  security."  Here,  Sir,  is  the 
true  theory.  Government  is  an  "  Institution."  The  right  of  the 
people — their  inalienable  right — is  to  "  organize"  it :  not  to  adminis- 
ter it.  Pursuant  to  this  theory,  the  whole  government  of  the 
United  States  was  organized;  and  its  Constitution  is  nothing  but 
a  delegation  of  authority  to  officers,  and  agents,  to  administer  it; 
and  amongst  other  means,  to  nominate,  and  appoint  other  officers 
and  agents,  to  aid  in  its  administration. 

And  now,  Sir,  I  must  guard  against  the  attempt  to  misapply,  or 
the  danger  of  misapprehending  what  I  have  said.  I  do  not  at  all 
mean  to  question  the  power,  or  the  right  of  the  people  to  provide, 
by  the  Constitution,  for  the  election  of  Judges.  Quite  the  reverse. 
The  very  object  of  a  written  Constitution  is  to  parcel  out  those 
portions  of  the  sovereign  power,  which  the  people  find  it  necessary 
to  delegate  for  good  government.  They  may  rightfully  determine 
what  shall  be  done ;  how,  and  by  whom  it  may  be  done. 
They  may  determine,  that  a  Judge,  or  any  other  officer,  may  be 
elected  by  all  the  voters  in  the  State,  by  voters  in  particular  dis- 
tricts, by  the  Executive,  by  the  Legislature,  or  by  a  college  of 
electors.  No  doubt  of  this.  They  may  do  so,  by  providing  for 
the  selection  of  all  officers  in  one  way ;  or  by  directing  that  some 
of  ihem  be  selected  in  one  way,  and  some  in  another.  But  what 
I  maintain  is,  they  no  more  divest  themselves  of  any  inalienable 
rio-ht,  by  prescribing  one  mode ;  than  they  do,  by  prescrib- 
ing any  other,  If  the  sovereign  power  authorizes  the  executive 
to  appoint  a  Judge,  or  any  other  officer;  the  executive  acts,  in 
obedience  to  the  lawful  mandate  of  the  sovereign  power.     If  the 


Constitution  directs  the  Judire  or  other  officer  to  be  created  by 
the  votes  of  the  people  of  the  State,  or  any  portion  of  it;  then 
the  election  is  in  obedience  to  a  mandate  equally  lawful,  and  ema- 
nating from  the  same  sovereign  power.  The  real  question,  then, 
to  be  considered,  and  the  only  one,  is  a  question,  not  of  "  n'^g-A^,"  but 
of  "  expediency.^'  What  is  the  method  of  proceeding  most  likely  to 
attain  the  object  w-e  have  in  view?  This  is  the  subject  for  our 
consideration  ;  and  we  are  not  to  be  enlightened,  as  to  our  con- 
clusions, on  this  point,  by  the  notion  of  a  "restoration"  to  the 
people,  of  any  rights,  of  which  they  have  been  deprived.  Resto- 
ration is  a  relative  term.  It  imports  the  return  of  an  object  to  the 
person,  from  whom  it  has  been  taken.  Where,  and  when,  did  the 
people  exercise  this  inalienable  right?  Where,  when,  and  by 
whom,  was  it  taken  away?  The  Constitution  of  the  United 
States — the  Mandate  of  the  people  of  the  United  States — vests 
the  appointment  of  the  Judiciary,  in  the  President  and  Senate. 
Our  State  Constitution,  from  its  origin,  has  vested  this  power  of 
appointment,  in  the  Executive.  There  is  no  aggression  upon  the 
rights  of  the  people.  And  any  argument,  which  professes  to  show 
any  invasion  of  such  rights,  must  be  without  the  shadow  of  a 
foundation. 

The  Judiciary  is  a  branch,  a  necessary  and  important  branch  of 
government.  It  is, — at  least  it  is  intended  to  be, — a  most  available 
ao-ent,  in  effecting  the  ends  of  government.  What  the  end  of 
government  is,  we  have  already  heard  from  the  highest  authority: 
— "to  secure  our  rights,  amongst  which  are  life,  liberty,  and  the 
pursuit  of  happiness:" — to  protect  every  man  who  needs  protec- 
tion, in  the  enjoyment  of  his  rights  of  person,  his  rights  of  pro- 
perty and  of  reputation.  It  is  not  to  protect  a  majority  against  a 
minority  of  the  community ;  but  for  the  protection  of  each  indi- 
vidual citizen  against  a  violation  of  his  rights  by  any  other  indivi- 
dual, or  number  of  individuals.  It  does  not  provide  a  remedy  for 
such  as  suffer  no  wrong;  or  relief  for  those,  who  have  sustained 
no  injury.  On  the  contrary,  the  redress,  it  promises,  is  only  to 
him,  whose  rights  have  been  invaded  ;  all  its  protection  is  promised 
to  him,  who  may  become  the  victim  of  force  or  fraud.  Those  who 
are  peculiarly  exposed,  whether  by  reason  of  infirmity  of  charac- 
ter, physical  or  moral;  from  the  want  of  pecuniary  means,  or 
popular  favor;  or  from  any  other  cause;  aye,  even  from  defor- 
mity or  depravity  of  moral  principle — all,  who  are  especially 
obnoxious  to  the  excited  passions  or  prejudices  of  others — are 
the  objects  of  protection.  All,  on  the  other  hand,  who  would 
2 


10 

offend  against  these,  (for  the  vilest  even,  still  have  rights,)  are  the 
subjects,  not  of  its  protecting,  but  of  its  restraining  power.  All, 
who  would  offend  must  be  restrained;  or  the  very  first  and  vital 
end  of  government  will  fail.  Whether  they  be  powerful,  abounding 
in  wealth  and  influence  ;  or  elevated  in  political  power,  and  place  ; 
whether  acting  individually,  or  in  masses ;  all,  who  offend,  must 
be  alike  amenable  to  the  laws.  Now,  Sir,  it  is  a  fact,  as  well 
known,  in  the  history  of  human  beings,  as  the  fact,  that  when 
respiration  ceases,  death  must  be  the  consequence — a  fact  of  uni- 
versal observation — that  the  possession  of  power,  without  some 
adequate  restraint,  begets  a  disposition  to  abuse  it.  No  body  can 
doubt  that.  It  has  been  a  part  of  the  infirmity  of  our  being,  since 
the  fall  of  Adam  ;  and  doubtless  will  be  so,  to  the  end  of  time. 
The  object  of  the  law,  which  is  the  mandate  of  government,  is  to 
restrain  that  propensity.  The  object  of  all  law  is,  to  guard  and 
secure  every  citizen,  however  humble,  in  the  enjoyment  of  all  the 
privileges  guaranteed  to  him.  Unfortunately,  however,  the  law, 
though  ffood  and  wise,  cannot  execute  itself.  If  a  man  suffer  ac- 
tual  injury  in  his  person,  or  in  his  property;  it  is  of  small  account, 
to  tell  him  there  is  an  act  of  Assembly  on  the  statute  book,  which 
says  you  shall  have  ample  redress.  If  he  cannot  go  beyond  the 
reading  of  the  statute,  if  no  mode  of  enforcin^f  his  claim  to  redress 
be  provided;  he  will  not  be  the  better,  for  the  statute.  There  must 
of  course  be  some  agency,  some  machinery,  to  carry  the  law  into 
effect.  You  must  then  have  wholesome  laws,  and  you  must  have 
courts  and  Judges  to  afford  the  means  of  executing  them,  and  of 
bringing  them  within  the  reach  of  those  for  whose  protection  they 
are  made.  This  proposition  will  be  admitted  on  all  hands.  If  there 
be  one  of  them  disputable,  I  am  not  aware  of  it.  We  must  have 
a  government  of  force,  to  be  administered  by  a  military  arm,  or 
a  government  of  laws  ;  if  the  latter,  we  must  have  Judges.  Of 
course,  the  Judge  should  execute  the  duties  of  his  station,  so  as  to 
accomplish  the  great  end  of  his  being.  He  should  apply  the  law, 
according  to  the  purposes,  for  which  it  was  enacted;  to  the  protec- 
tion of  the  weak  against  the  strong;  to  the  punishment  and  re- 
straint of  those  who  would  commit  wrong ;  and  to  the  redress  and 
security  of  those,  who  are  exposed  to  it. 

Hence  arises  the  great  question  for  our  solution.  What  sort  of 
Judge,  in  this  state  of  things,  is  most  likely  to  perform  the  functions 
of  the  office  effectively  and  faithfully  ?  What  are  the  elements 
necessary,  in  the  character  of  an  officer,  who  is  thus  to  be  the 
representative,  and  exponent  of  the  law  ?     My  answer  is,   that 


11 

the  very  first  and  indispensable  constituent,  in  the  character  of 
such  a  man  is  a  consciousness  of  perfect  independence  ;   a  free- 
dom from  all  motive  to  do  wrong;  an  exemption  from  all  fear  to 
do  right.     This  truth,  to  my  mind,  results  from  the  very  nature  of 
the  fact,  that  he  is  to  perform  an  odious  duty;   odious  to  an  influ- 
ential opposition,  in  direct  violation  of  its  strongest  feelings  and 
dearest  interests.     In  any  other  matter,  if  you  desired  a  man  to 
perform  a   given  duty;    you   would   certainly,  as  far  as  possible, 
remove  from  him  all  motive  to  neglect  or  abuse  his  trust;  espe- 
cially would  you   guard   against  his   being  made  to  suffer  for  its 
fiiithful  discharge ;  you  would,  if  possible,  so  arrange  matters,  as 
that   advantage,  and  not  loss,  should  be   the  consequence  of  his 
fidelity.     Any  other  course  would  be  as  contrary  to  the  common 
usage  of  prudent  men  ;  as  it  is  to  the  philosophy  of  our  nature. 
Man  is  a  creature  of  motive.     You  might  as  soon  expect  an  en- 
gine of  the  most  perfect  mechanical  construction,  to  perform  its 
intended  operations,  without   the    guiding  and   controlling   hand 
of  the  engineer;  as  expect  the  mind  of  a  human  being  to  give 
existence  to  words  or  actions,  without  some  motive  to  act  upon  it. 
Experience,  in  every  department  of  human  life,  demonstrates,  that 
such  is  the  character  of  every  sane  mind,  and  ever  has  been.     Tt 
is  also  true  that  the  very  instincts  of  our  nature  prompt  us  to  re- 
gard, with  peculiar  interest,  considerations  of  personal  advantage, 
or  injury.     Man,  in  his  best  condition,  is  to  some  extent  selfish, — 
wisely,   perhaps — nay,   perhaps,  necessarily — but    certainly   such. 
If  his  existence  is  in  peril,  he  is  instinctively  impelled  to  avoid  the 
danger;  and  he  will  obey  the  impulse,  unless  it  be  counteracted 
by  some  other  of  a  higher  and  more  imperative  character.     It  is 
the  same,  in  regard  to  evils  of  a  nature  less  fatal,  but  in  their  de- 
gree quite  as  unwelcome.     It  may  be  the  impurity  of  our  animal 
nature ;   it  may  be  disowned  by  our  purer  intellectual  being.     We 
certainly  share  it,  in  common  with  the  brute  creation.     The  horse 
you  ride,  will  be  shy  of  the  ditch,  which  looks  too  wide  for  him 
to  leap ;  until  the  spur  overcomes  the  dread,  and  urges  him  for- 
ward to  his  best  attempt.     Sir,  the  man  and  the  brute  do  not 
differ,  in  that  particular. 

Let  us  then,  Mr.  President,  consider  what  are  the  motives  (and 
what  their  force)  which  are  likely  to  operate  upon  the  mind,  and 
regulate  the  action  of  the  Judge,  we  are  about  to  create  ?  I  will 
not  treat  of  him,  as  an  abstraction  ;  but  as  a  Judge  here,  in  Mary- 
land, in  the  nineteenth  century.  This  is  the  time,  here  is  the 
place, — and  the  theatre, — for  the  exercise  of  his  duties.    We  need 


12 

notindul.^e  in  general  speculations  and  theories,  based  upon  an  as- 
sumed perfection  of  individual  character,  and  an  elevated  condition 
of  society;  or  upon  any  other  assumption.     We  have  to  deal  with 
a  practical  question  ;  and  I  hold  the  propriety  of  acting,  with  an 
eye  to  the  actual  condition,  in  which  we  find  men  and  matters. 
We  must  consult  our  judgments,  enlightened  by  our  experience 
and  observation  ;  and  answer  the  question,  which  I  have  so  often 
said  should  ever  be  the  object  of  our  solicitude — "  What  will  prac- 
tically produce  the  greatest  good  to  the  greatest  number  V     The 
Judge  then  will  be  but  a  man,  a  better  man  it  is  to  be  hoped,  than 
many  others ;  but  still  subject  to  the  universal  law  of  his  being, 
influenced  by  motives,  perhaps  of  a  higher  order;  but  neverthe- 
less yielding  to  those,  which  are  most  influential,  in  human  con- 
duct.    Let  us  then  inquire,  what  are  the  motives  which  are  likely 
to  be  presented  to  his  mind.     Doubtless  in  this  enlightened  age, 
when  public  sentiment  is  to  some  extent  controlled  and  instructed 
by  the  precepts  of  a  pure  Religion   and  a  sound  morality,  there 
is  no  man,  who  would  not  obey  his  sense  of  propriety,  in  the 
absence  of  any  inducement  to  do  wrong.     He  would  therefore  do 
right  (that  is  to  say,  what  he  honestly  thought  right)  if  no  tempta- 
tion existed.    Of  course,  I  do  not  speak  of  one,  who  by  indulgence 
in  a  dissolute,  vicious  course  of  life,  has  demoralized  his  feelings ; 
and  blinded,  or  blotted  out  his  moral  sense.     Such  a  man  could 
not  be  considered,  as  an  index  of  the  character  of  the  officer;  and 
any  other  would  perform   his  duty,  in  the  absence  of  any  strong 
motive,  to  induce  a  neglect  or  violation  of  it.     There  is  nothing 
in  the  character  of  his  duties  to  bias,  or  warp  an  honest  mind. 
He  has  no  patronage,  to  whet  the  avarice  or  excite  the  ambition  of 
friends  or  relatives.     He  confers  no  office.     Candidates  for  such 
honors  must  look  elsewhere.     His  duty  is  only  to  act  judicially,  in 
coercing  an  officer  to  the  performance  of  his  duty  :  or  in  restraining 
him,  in  any  attempt  to  exercise  it  oppressively.     He  acquires  no 
power  for  himself.     His   business   is,  to  determine  when  others 
abuse  theirs.     He  acquires  no  riches,  by  the  exercise  of  his  func- 
tions.     He   decides    upon   the    contested   rights   of  others;    but 
whether  his  judgment  shall  be  in  favor  of  A  or  of  B,  no  matter 
how  large  may  be  the  amount  involved,  not  one  farthing  of  it  is 
to  go,  in  any  event,  into  his  own  pocket.     If  a  case  occurs,  in 
his  Court,  in  which  his  own  interests  are  involved  directly  or  re- 
motely ;  he  must  retire  from  the  Bench  ;   and  leave  its  decision  to 
an  impartial  tribunal,  before  which   the  judge   is  merged  in  the 
suitor.     He  is  to  decide  exclusively  on  the  rights  of  others.     He 


13 

does  this,  by  no  voluntary  act  on  his  part.  He  never  goes  in 
search  of  an  opportunity  to  exercise  his  authority;  he  asks  no 
man  to  come  before  him  for  judgment.  But,  while  he  cannot  do 
this,  if  he  would ;  he  is  as  much  the  slave  of  necessity,  on  the 
other  hand.  He  cannot,  if  he  would,  avoid  the  exercise  of  his 
duties,  whenever  they  are  put  in  requisition.  He  is  bound, 
whenever  offences  are  charged,  or  injuries  alleged,  to  interpose 
his  jurisdiction  ;  and — often,  very,  very  often  under  the  most  pain- 
ful circumstances — to  hear,  and  decide  upon  the  fiercest,  bitterest 
contests.  There  he  sits,  however.  The  more  tender  feelings  of  his 
heart  may  excite  his  anxiety  ;  or  his  refined  moral  sense  may  feel  a 
disgust.  But  there  he  must  sit,  calm  and  unmoved,  with  no  li- 
cense to  indulge  either;  but  compelled  to  consult  the  stern  dic- 
tates of  his  judgment  and  knowledge.  To  these,  every  man  may 
appeal,  who  chooses  to  think  himself  injured  ;  whether  he  be  so, 
in  fact,  or  not.  However  unreasonable  his  complaint;  whom- 
soever it  may  affect;  the  Judge  must  listen;  he  must  examine, 
and  decide  it.  Any  one  may  appeal  to  him  ;  but  as  the  exponent 
of  the  law,  he  must  give  the  same  response  to  all.  The  law  is 
made  for  all,  who  come  within  its  provisions;  and  all  are  en- 
titled to  its  equal,  impartial,  and  prompt  administration.  It 
prescribes  the  line  of  his  march  ;  and  his  feelings,  his  reputa- 
tion, and  his  peace  of  conscience,  will  not  allow  him  to  stag- 
ger, to  halt,  or  to  turn  aside,  merely  from  a  desire  to  do  wrong. 
Such  then  is  the  condition  of  the  Judge,  if  temptations,  induce- 
ments to  do  wrong,  be  kept  out  of  the  way.  And  that  the]/  should 
be,  as  far  as  practicable,  I  now  assume  as  an  admitted  proposition. 
To  enable  us  to  guard  asrainst  them,  we  must  understand  what 
they  are  likely  to  be?  —  those  occasions,  which  disturb  the 
regular  current  of  impartial  justice — whence  are  they  likely  to 
arise  ?  Now,  to  all  controversies,  there  are  at  least  two  parties. 
It  may,  it  often  does  so  happen,  that  one  of  them  is  rich,  power- 
ful, and  influential ;  the  other  poor  and  despised.  The  one  has 
the  distribution  of  patronage,  or  favor,  which  enables  him  to  con- 
trol, if  not  the  opinion,  at  least  the  voice  of  a  large  circle  of 
expectants,  or  dependants ;  the  other  is  without  influence,  or 
friends.  Here  is  a  case  that  appeals  to  the  infirmities  of  the  Judge. 
Yet  the  rules  of  law  are  the  same  precisely,  as  if  the  character  of 
the  parties  were  exactly  reversed,  or  exactly  alike ;  and  therefore 
its  even  current  should  not,  iti  any  respect,  be  disturbed.  The 
humble  man  has  the  law,  on  his  side ;  the  powerful  man  has 
misconceived  his  rights,  or  has  intentionally  encroached  upon 


14 

those  of  his  poor  neighbor;  or  the  point  is  a  difficult  or  a  nice 
one.     But,  in  any  event,  a  decision  in  favor  of  the  opulent,  popu- 
lar litigant,  will  ensure  commendation  and  favor  for  the  Judge; 
while  a  decision  against  him,  will  excite  the  censure  and  condem- 
nation, not  only  of  the  great  man  himself,  but  also  of  all  those  who 
speak  and  act  as  he  directs.     The  despised  litigant,  on  the  other 
hand,  can  neither  accelerate  nor  retard  the  progress  of  the  Judge 
towards  reputation,  honor,  and  social  enjoyment.     Is  there  not, 
then,  an  obvious  temptation  here  ?    I  do  not  put  the  case  of  a  Judge 
tempted  to  an  act  of  wilful  corruption.     It  is  not  necessary  for  my 
argument.     I  take  the  case  of  a  Judge  just  as  honest  as  those  we 
shall  find,  in  the  class,  from  which  we  must  select.     Yet  he  bears 
about  him  the  infirmities  of  our  nature;  its  weaknesses;  its  fol- 
lies, if  you  please.     He,  like  all  men,  has  his  prejudices  and  his 
partialities;  he,  like  them,  must  to  some  extent,  find  his  judgment 
under  the  dominion  of  his  passions,  of  his   appetites,  or  of  his 
self-regard.     Thus  tempted  from  the  line  of  his  duty,  he  must  have 
some  counteracting  influence,  to  fall  back  upon.     What  is  it  and 
how  is  it  to  be  supplied  ?    Sir,  human  invention  may  be  scanned  in 
vain  ;  imagination's  widest,  wildest  range  may  be  traversed,  to  find 
any  other  effective  means  to  accomplish  the  necessary  object — one 
and  one  only  can  be  found — a  conscious  independence  of  the 
Judge.     He   must   have  this ;  and  having  it,  he    has   all  that  is 
necessary  to  quiet  his  apprehensions ;   to  subdue  his  prejudices 
and  partialities  ;  and  to  leave  him  in  the  indulgence  and  expression 
of  opinions  formed  under  that  high  sense  of  the  responsibility,  which 
he  owes  to  Him  who  gave  him  his  being.     This  is  the  rock  of  his 
safety.     On  this,  he  looks  with  no  fearful  concern  for  his  security; 
although  the  waves  dash  furiously  at  its  base.     He  knows,  and 
feels,  they  cannot  harm  him  ;   and  he  treads,  with  as  firm  a  step, 
as  if  the  sea  before  him  were  calm  and  unruffled. 

Now  let  us  consider  the  opposite  hypothesis ;  let  us  so  arrange 
matters,  as  that  the  influence  of  the  man  of  wealth  and  power  shall 
be  broucrht  to  bear  directly  upon  the  most  important  items  in  the 
comfort  or  convenience  of  the  Judge  ;  in  fine,  upon  his  very  official 
existence  ;  and  then  how  may  we  expect  the  arrangement  practi- 
cally to  work?  I  do  not  mean  to  say,  there  are  not  men  proof 
against  all  such  opposing  causes ;  men  who  would  jeopard  their 
lives,  in  the  strict  performance  of  duty ;  and  become  Martyrs  to 
their  principles.  We  have  had  Martyrs — men  who  have  rushed  to 
the  stake,  to  vindicate  the  truth  of  their  opinions.  Religion  can 
make  men  Martyrs.     We  have  had  Warriors  and  Heroes,  to  take 


15 

the  advance  in  a  forlorn  hope,  and  with  fearful  and  countless  odds 
against  them,  to  plunge  into  danger  and  death,  to  rescue  a  na- 
tion, or  an  army.  Why  are  Martyrs  at  the  stake  the  objects  of  our 
veneration  ?  Why  are  Warriors  and  Heroes,  who  have  poured  out 
their  blood  on  the  battle-field,  celebrated  in  history,  and  cherished 
with  admiration  ?  Sir,  it  is  because  they  are  rai'e.  If  every  man 
was  a  Saint,  or  a  Hero,  the  character  would  lose  its  charm.  But, 
again,  let  us  consider  the  wide  difference,  in  the  cases.  The  Saint 
on  earth  is  sustained,  and  borne  through  his  fiery  ordeal,  by  the 
strong  hope,  that  he  is  presently  to  be  a  Saint  in  Heaven ;  and 
to  receive  an  ample  reward  for  his  sufferings  here.  The  Hero 
knows,  that  he  is  to  acquire  perennial  fame  ;  while  the  habits  of 
his  life,  his  passions  and  feelings  make  him  regard  all  things  as  un- 
worthy even  of  comparison  with  so  high  an  object.  How  is  it  with 
the  poor  Judge  ?  He  is  assailed  by  the  influential  adversary,  with 
charges  of  incompetency  or  misconduct.  His  destruction  being 
the  object,  the  means  most  effective  will  of  course  be  resorted  to. 
If  his  ability  be  well  established,  his  purity  must  be  attacked;  if  he 
has  more  character  for  integrity  than  for  talent,  then  the  latter  must 
be  defamed.  Once  get  him  into  bad  odor;  and  the  business  of 
thrusting  him  still  lower  and  lower,  will  not  be  difficult  for  such 
agents.  And  what  is  the  result  to  him  ?  Honor  and  fame  and 
immortality  amongst  men  ?  No,  Sir.  Infamy,  disgrace,  oblivion, 
— these  are  his  portion,  when  those  who  riot  in  the  ruin  of  his 
character,  have  accomplished  their  ends.  Few  can,  still  fewer 
will,  examine  minutely  into  his  history.  He  is  a  degraded  judge  ; 
offensive  to  those  who  lead  and  control  the  sentiment  of  the 
community ;  charged  with  numerous  delinquencies ;  and  by  that 
community,  condemned.  You  first  compel  him  to  decide ;  and- 
then  for  deciding  conscientiously,  you  doom  him  to  a  hopeless 
degradation,  robbed  of  his  reputation,  and  probably  thereby  depriv- 
ed of  the  means  of  future  acquisition,  either  of  character  or  pro- 
perty. 

I  am  aware.  Sir,  of  the  attempt  which  some  persons  make 
to  obviate  these  difficulties,  which  they  cannot  but  feel  and  ac- 
knowledge ;  an  attempt,  by  which,  I  believe  they  do  actually 
deceive  themselves.  They  say,  they  admit  the  necessity  of  having 
the  Judge  independent ;  and  they  wish  to  make  him  such.  I  was 
quite  amused,  the  other  day,  to  hear  one  of  the  gentlemen  across 
the  Hall,  full  of  zeal,  in  what  he  regards  a  "reformation"  of  our 
judicial  system  ;  and  repeating  the  phrase — "An  independent  judge 
dependant  upon  the  people!"     It  shows  the  fact,  at  which  I  rejoice, 


16 

that  there  is  a  deep-seated  conviction  of  the  great  truth,  that  a 
Judge  should  be  independent, — even  with  those  who  have  been 
inoculated  wi(h  the  virus  of  pseudo-reform, — of  change  in  every 
thing.  Sir,  it  is  an  inbred  element  in  the  constitution  and 
character  of  the  Saxon — this  respect  for  law,  and  for  the  purity  of 
its  administration;  and  as  essential  to  it,  the  independence  of  the 
minister  of  law.  Now,  Sir,  paradoxical  as  it  may  seem  to  some, 
I  propose  to  show,  that  there  is  at  least  as  much  reason  for  mak- 
ing the  judge  independent  of  the  people,  in  this  country;  as  there 
is,  in  England,  for  making  him  independent  of  the  crown.  It  cer- 
tainly is  the  boast  of  the  English  Constitution,  that  the  Judges 
there  are  no  longer  tenants,  at  the  will  of  the  Crown.  It  was  a 
brilliant  achievement  in  favor  of  liberty — a  great  popular  triumph. 
The  measure  was,  to  a  very  considerable  degree,  effected  by  the 
13th  William  III ;  and  it  was  completed  by  1st  George  III,  which 
was  the  first  to  enact  that  the  commission  should  not  expire  with 
the  demise  of  the  king;  and  which  also  made  his  salary  perma- 
nent. Every  man,  at  all  acquainted  with  the  history  of  Jurispru- 
dence, or  indeed  with  political  history,  appreciates  the  inestimable 
blessinofs  ofuaranteed  to  the  citizen — to  the  humblest,  the  most 
persecuted  citizen — by  this  independence  of  the  Judge,  under  the 
British  government.  Yet  I  hope  to  satisfy  those,  who  will  listen, 
and  will  allow  the  argument  to  have  its  fair  effect — that  all  therea- 
sons  which  make  it  valuable  and  necessary  there,  apply  with  all 
their  force  ;  and  some  of  them,  with  much  greater  force,  to  our  con- 
dition here.  Let  us  go  back  a  little  way  into  English  history. 
Before  the  Independence  of  the  Judiciary,  the  system  was 
virtually  a  tyranny.  And  why?  Because  the  rights  of  the  indi- 
vidual citizen  were  held,  at  the  will  of  the  Sovereign,  uncontrolled 
by  fixed  and  known  rules  of  law.  That  is  the  very  definition  of 
tyranny.  It  may  exist  in  a  monarchy,  in  an  aristocracy,  or  in  a 
democracy ;  but  in  either  form,  if  the  will  of  the  sovereign  power 
is  not  controlled  by  settled  laws,  which  secure  the  rights  of  person 
and  of  property;  the  government  is  essentially  and  emphatically 
a  tyrannical  government.  The  sovereign,  in  England,  was 
the  king;  and  the  king,  without  the  control  of  law,  was  there- 
fore the  tyrant.  I  do  not  mean  to  say,  that  he  constantly 
acted  out  the  character.  A  man  may  have  power,  which  he 
rarely  or  never  exerts ;  but  it  is  the  amount  of  power,  in  the 
hands  of  the  government — not  the  personal  character  and  tem- 
per of  the  monarch — which  constitutes  the  idea  of  tyranny. 
The  King  of  England  did  not  habitually  exert  his  power;  but 


17 

wlienever  his  passions  or  his  cupidity  were  excited,  he  did  exert 
it.     The  government  was  ordinarily  administered  by  the  authority 
of  acts  of  parliament,  in  the  making  of  which,  the  people,  throucrh 
their   representatives,    participated.     But  as  I  have    before    said, 
these  statutes  of  parliament  could   not  execute  themselves;   the 
Courts  and  the  Judges  administered  them;  but  the  King  was  vir- 
tually the  Judge.     He  might  not  have  said  to  the  Judge  in  words, 
but  he  made  him  understand  sufficiently  well,  that  in  a  particular 
case,  in  which  his  hatred  or  his  avarice  was  enlisted,  the  judg- 
ment should  be  such  as  he  desired  ;  or  he  would  provide  another, 
who  would  feel  no  difficulty  in  gratifying  him.     Take,  for  an  in- 
stance, the  celebrated  case  of  the  Corporations,  where  an  English 
monarch  to  gratify  his  cupidity,  resolved  upon  their  destruction, 
and  made  a  tool  of  his  Judge  for  the  express  purpose  of  effecting 
his  object — yes.  Sir,  and  as  my  friend  near  me  (Mr.  Crisfield) 
reminds  me — that  tool ! — his  Attorney  General,  who  had  prepared 
all  the  pleadings  and  arranged  the  matter,  as  the  lawyer,  and  then 
took  his  seat  on  the  bench,  to  consummate  as  Judge  the  act  of 
lawless  injustice!     Here  was  a  case  of  removal  by  the  hand  of 
power,  for  the  faithful,  firm  adherence  to  duty.    No  such  case  can 
occur  now.     And  why?     Simply  because  the  Judge  now  is  inde- 
pendent; he  was  not  so  then.     But  he  was  independent,  in  one 
sense;    and,  in  the   sense   intended  by  the  class  of  persons  to 
whom  I  have  alluded.    Nominally  he  was  independent ;  and  he  was 
so,  in  fact,  of  every  one,  except  the  king.    All  the  rules  of  law,  and 
all  the  forms  of  law,  were  prescribed  for  his  government,  and  these 
required  him  in  the  one  case,  to  pass  a  fair  and  honest  judgment, 
just  as  much  as  they  did  in  the  other.    But  what  was  the  practical 
effect?     Why  you  find,  the  King  had  control  of  the  law,  because  he 
had  control  of  the  man  who  administered  the  law.    In  such  a  state  of 
things,  the  government  and  the  law  cease  to  afiord  protection  to 
the  rights  of  the  citizen ;  and  it  is  precisely  this  want  of  certain 
effectual  protection,  which  distinguishes  tyranny  from  free  govern- 
ment.    Liberty  is  but  the  term,  by  which  we  designate  our  rights. 
It  consists  essentially  in  the  enjoyment,  the  certain  and  undis- 
turbed enjoyment  of  rights,  personal,  social,  and  political.     Rights 
cannot  practically  exist,  where  there  is  a  power  to  control  them 
at  will.     We  can  have  no  certain  enjoyment  of  privileges,  civil 
or  religious;  if  the  sovereign  power  may  protect  them  at  plea- 
sure.    It  is  not  important,  whether  through  the  forms  of  law  or 
in  defiance  of  the  forms  of  law,  this  arbitrary  or  sovereign  will 
exerts  its  power.     The  practical  consequences  are  the  same.     It 
3 


18 

is  a  lawless  government;  an  arbitrary,  a  tyrannical  government, 
the  moment  the  regular  course  of  law  is  disturbed  ;  and  the  citizen 
is  thrown  upon  the  whim,  the  favor  or  even  the  sense  of  justice  of 
the  sovereign.  This  sovereign  power,  I  repeat,  may  consist  of 
one,  or  of  many.  It  is  not  the  number  of  individuals,  who  rule, 
that  is  to  make  it  more  or  less  a  tyranny.  It  is  the  absence  of 
restraint  upon  its  will;  it  is  the  failure  to  ensure  a  just,  regular, 
and  impartial  administration  of  the  law,  so  as  to  redeem  the  pro- 
mises and  pledges,  by  which  it  guarantees  to  every  individual  in 
the  community,  from  the  highest  to  the  lowest,  and  to  all  alike, 
the  safe  and  certain  enjoyment  of  all  the  rights  and  privileges, 
with  which  they  are  invested;  it  is  the  unwillingness,  or  inability 
to  enforce  engagements,  to  restrain  vindictive  passions,  and  vio- 
lence whenever  exerted  against  the  weak,  to  secure  property  to 
its  rightful  owner  when  an  attempt  is  made  to  wrest  it  from  him 
by  force  or  fraud — it  is,  I  repeat,  the  failure,  unwillingness,  or  in- 
ability, in  these  respects,  which  constitutes  the  defects  of  Gov- 
ernment; and  they  follow — as  logical  sequences — making  up  the 
character  and  the  curse  of  a  Despotism. 

But  at  every  point  we  are  met  with  the  notion,  that  the  people 
have  all  power,  and  ought  therefore  to  have  control  over  the  Judi- 
ciary. Sir,  if  the  people  have  power  to  do  wrong,  it  is  the  very 
purpose  of  government  to  restrain  its  exercise;  for  the  only  ob- 
ject which  men  can  propose  to  themselves,  by  entering  into  such 
an  association  as  civil  Society  is,  to  secure  to  themselves  the  en- 
joyment of  their  rights,  and  protect  themselves  against  wrong. 
Are  the  eternal  and  immutable  laws  of  justice  less  imperative, 
upon  men  when  assembled,  in  large  bodies,  than  they  are  when 
a.ct\ng  individually?  Masses  are  but  individuals  in  combination  ; 
and  the  laws  which  enjoin  the  observance  of  justice,  and  prohibit 
violence,  or  the  practice  of  fraud,  are  as  obligatory  in  the  one  case 
as  in  the  other.  Like  the  Being,  from  whom  they  emanate,  the 
Rules  of  truth  and  equity  are  the  same  to-day,  yesterday,  and  for- 
ever. In  them  "is  no  variableness,  neither  shadow  of  turning." 
To  say,  then,  that  it  is  the  right  of  the  people  to  control  the  judi- 
ciary, and  this  right  ought  to  be  exercised,  is  only  to  leave  the 
question  as  we  found  it.  The  duty  still  remains,  to  decide  how, 
in  the  exercise  of  this  admitted  right,  can  they  control  and  or- 
ganize the  judiciary,  to  the  best  advantage  of  the  community — 
the  best  advantage  in  fact  of  themselves  —  the  people  —  the 
"whole"  people  —  for  whom  all  the  benefits  of  government 
are  designed.     If,  as  I  maintain,  il  be  not  only  most  useful,  but 


19 

absolutely  necessary  to  the  attainment  of  the  objects  designed, 
that  your  Judges  should  be  independent;  then,  according  to  the 
theory  assumed  by  those  who  are  so  jealous  of  encroachment 
upon  the  people's  rights,  it  is  proper  to  use  those  rights  in  the  or- 
ganization and  regulation  of  the  government,  so  as  best  to  secure 
the  design.  If  amongst  the  powers  of  the  people,  were  included 
the  power  to  do  wrong,  or  to  cause  others  to  do  wrong  either  to 
themselves,  or  any  portion  of  themselves,  (a  proposition  which  I 
deny;)  still  they  ought  not  to  desire  to  do  it;  nor  should  we,  as 
their  representatives,  so  exert  the  power.  It  is  obvious,  then,  in 
any  just  view  of  the  matter,  that  it  is  our  duty  to  adopt  such  mea 
sures,  as  the  faithful  execution  of  the  laws  requires;  and  such  as 
will  secure  to  the  people  their  rights  of  person,  of  property,  and 
of  reputation.  These  are  the  rights,  which  society  and  govern- 
ment are  instituted  to  protect ;  and  it  is  suicidal,  to  maintain  for 
the  people,  or  for  the  government,  a  right  to  destroy  or  disturb 
them.  Men,  whose  moral  feelings  are  depraved,  require  re- 
straint, because  they  will  otherwise,  intentionally,  commit  injuries; 
and  others  under  the  influence  of  passion  or  prejudice  may  do  the 
same.  And  knowing  this,  the  government — the  power  of  the  peo- 
ple— should  guard  and  protect  those,  who  would  otherwise  be  the 
victims  of  such  persons.  The  latter  are  a  part  of  the  people  ; 
and  government  is  as  much  designed  for  them,  as  for  others;  in- 
deed, more  so.  Each  portion  of  the  whole  has  its  respective 
and  often  divers  interests;  in  other  words,  its  wants.  The 
mercantile  interest  may  be  greater  or  less  than  the  agricultural ; 
or  those  who  are  laborers  may  be  fewer  in  number  than  those 
who  are  not ;  yet  each  has  an  undoubted  claim  to  the  care  and 
protection  which  his  interests  require.  And  so  it  is  with  all 
portions;  but  it  is  emphatically  the  case  with'  the  feeble  and  the 
destitute,  who  have  smaller  means  in  every  respect  to  protect 
themselves,  and  can  look  no  where  but  to  the  law  and  its  ad- 
ministrators for  protection.  Now,  then,  if  all  this  be  as  I  have 
stated,  it  is  manifest  that  your  laws  must  be  free  of  access  to  all, 
equal  to  all,  and  certain  for  all.  To  have  them  administered  with 
a  halting,  hesitating  step ;  to  let  them  bend  one  way  for  this 
man,  another  for  that,  can  but  encourage,  and  must  sometimes 
sanction,  the  doings  of  the  wicked  or  the  passionate  or  preju- 
diced ;  while  it  will  necessarily  alarm  and  discourage,  and  often 
ruin,  the  victim.  The  consciousness  of  certain  defeat  or  punish- 
ment, will  generally  restrain  m3U  from  fraud  or  force ;   while  a 


20 

chance  of  success  or  escape,  will  operate  as  a  premium  to  hazard 
the  experiment. 

But  can  the  Judges  be  expected  to  do  their  duty,  when  their 
very  existence  depends  upon  doing  otherwise  ?  You  will  not 
allow  a  Judge  to  act,  when  his  near  relative  has  an  interest  in 
his  decision  ;  but  to  decide  when  his  own  rights  of  person,  pro- 
perty^  or  reputation  are  the  subject  of  controversy,  would  shock 
every  man's  sense  of  propriety.  Why  is  this?  The  answer  is 
obvious.  His  partialities  would  bias  his  judgment,  if  his  integrity 
were  proof  against  temptation  ;  and  the  reason  is  abundantly  suffi- 
cient to  justify  the  rule.  But  does  not  the  same  reason  apply,  with 
all  its  force,  when  his  official  existence,  which  may  be  his  means 
of  subsistence,  when  even  more  than  this,  when  his  reputation 
and  fair  character  are,  not  (it  is  true)  the  subject  of  the  controversy, 
in  terms;  but  deeply  involved  as  consequences  resulting  from  the 
particular  manner  in  which  he  may  decide  the  case  ?  If  the  value  of 
one  dollar  of  his  property  be  at  stake  in  the  issue,  he  is  disqualified, 
for  assumed  partiality;  and  yet,  when  consequences  utterly  ruinous 
to  himself  may  grow  out  of  the  decision,  you  are  asked  to  disregard 
their  influence.  Now,  Sir,  my  proposition  is,  that  he  be  placed 
in  a  condition  to  exempt  him  from  these  consequences,  from  all 
fear  of  them.  Let  him  be  defended  against  any  such  influence, 
and  against  all  other  influences,  but  that  of  a  high  and  moral  obli- 
gation, to  do  his  duty  faithfully,  and  firmly — yes,  Sir,  in  one  word, 
make  him  "  indepeiident."  And  the  way  to  do  this,  is  to  make 
his  tenure  of  office  to  depend,  not  on  the  frowns  or  the  smiles  of 
those  upon  whose  rights  he  may  pass  judgment,  but  upon  his  faith- 
fulness and  firmness — upon  his  "good  behaviour."  This,  Sir,  is 
what  the  "  rights  of  the  people  "  require  ;  this  is  what  all  the  peo- 
ple ought  to  desire;  and,  I  have  no  doubt,  do  desire.  They  ought 
to  demand  it,  because  the  wants  of  those  for  whom  Courts  and 
Judores  are  provided  demand  it;  because  the  pledge  and  promise 
of  protection  and  security  made  them  by  the  people,  will  other- 
wise be  false  and  delusive.  If  it  were  only  to  those,  who  are 
suitors  in  your  Courts  that  these  pledges  of  protection  are  bro- 
ken, it  would  be  unpardonable.  But  to  suppose  that,  is  to  com- 
mit a  great  error.  The  man,  who  fulfilling,  in  all  things,  his  obli- 
gations as  a  peaceable,  quiet  citizen,  has  had  the  good  fortune  to 
escape  collision  with  his  neighbor;  who  has  never  had  occasion 
to  consult  a  lawyer,  or  invoke  the  interposition  of  the  Court;  who 
in  all  his  life  has  never  had  a  controversy — he,  too,  has  a  deep 
interest  in  this  matter.     Sir,  it  is  the  sure  and  certain  administra- 


21 

tion  of  the  law;  it  is  the  known  definition  of  his  rights;  the  moral 
certainty  that  they  will  be  enforced  by  the  Courts;  it  is  this,  that 
has  saved  his  rights  of  property  from  aggression,  his  person  from 
outrage,  and  his  character  from  defamation.  Let  the  restraints  of 
the  law  be  withdrawn  ;  and  the  quiet  and  peaceful  men  will  find 
others  in  the  community,  who  only  need  encouragement  to  invade 
their  rights.  Yes,  Sir,  a  withdrawal  of  restraint  will  make  the 
latter  offenders,  if  they  are  not  such  already.  It  is  then  due  to 
all,  that  the  law  should  be  faithfully  and  fearlessly  administered, 
and  that,  to  this  end,  the  Judge  should  be  '^independent.'^  To  what 
else  can  men  look  for  safety?  In  a  despotic  government,  the  will 
of  the  monarch  is  enforced  by  the  bayonet.  That  is  a  very  simple 
mode,  most  assuredly,  of  administering  what  is  there  deemed 
justice.  But  such  justice  does  not  exactly  comport  with  our 
republican  notions ;  and  we  are  not  likely  to  have  either  a  despot 
to  decide  the  law  in  the  same  breath  which  creates  it,  or  a  military 
corps  to  enforce  his  edicts.  We  are  thrown  entirely  upon  the 
power  of  the  law.  There,  and  no  where  else,  must  every  man 
apply  for  a  remedy.  If  my  neighbor  attempt  to  take  my  property — 
if  he  abuses  my  person — if  he  villifies  my  character — I  ascertain 
the  law.  It  is  fixed  and  settled.  I  can  demand  the  aid  of  the 
Court.  It  is  open  to  all.  I  claim  the  sentence  of  the  Judge,  in 
conformity  with  that  fixed  law,  regardless  of  his  prejudices  or  his 
partialities — of  the  favor  or  affection  of  my  adversary,  however  in- 
fluential. 

Reverse  the  case :  and  what  is  the  value  of  your  law  ?  What 
avails  your  Court?  It  admits  the  suitor  within  its  halls,  but  it 
mocks  his  effort  to  obtain  redress.  Is  it  amongst  the  "  rio-hts 
of  the  people,"  thus  to  make  a  mockery  of  law  and  justice? 
Is  this  a  right,  which  it  is  desirable  to  "restore"  to  them? 
Sir,  I  say  again,  the  people  have  the  right,  in  one  sense  of  that 
term;  they  have  ihe  power  to  do  it;  they  are  sovereign.  They 
may  assemble  in  their  majesty,  and  expressly  say  to  their  Judge  : — 
"You  have  given  a  righteous  judgment,  a  judgment  consistent 
with  the  laws  and  with  the  rules  of  honesty  and  equity ;  but  it  is 
not  consistent  with  our  feelings,  and  therefore  as  we  have  the 
power,  so  we  resolve  to  remove  you  from  your  seat  to  make  way 
for  one  who  will  consult  our  wishes."  They  can  do  this,  and  the 
Judge,  driven  from  his  seat,  has  no  redress.  But  is  it  therefore 
proper?  is  it  therefore  desirable  to  do  it?  or  to  do  any  thincr, 
which  will  encourage  the  exercise  of  such  a  power?  No,  Sir; 
the  innate  sense  of  propriety  common  to  all,  would  denounce 


22 

such  a  proceeding  as  iniquitous,  in  the  highest  degree  ;  and  in  the 
more  legitimate  sense  of  the  term   I  deny  that  the  people  have 
any  such  right.     Now,  Sir,  what  I  maintain  is,  that  when  you 
make  the  Judge  the  puppet  of  the  people,  you  virtually  encourage 
and    often    will  cause  this  iniquity;    that  there  is   no  real  secu- 
rity, but  in  the  independence  of  the  Judiciary.     Sir,  the  word 
"joeojo/e"    is   with   us,   a   word  of  very   large    import — of  flexi- 
ble and  indefinite  import.     It  is  said  here,  that  the  ^'people  are 
eternal  and  immoiial."     They  are   certainly  as   immortal  as  the 
government.     No  doubt  of  that.     But  they  have  some  other  attri- 
butes, which  the  public  speeches  of  those  who  flatter  them,  are 
not  so  apt  to  describe  or  descant  upon.     The  abstract  theory  of 
the  honesty  and  purity  of  the  people  is  all  very  well,  in  political 
harangues  intended  to  court  their  favor.     But  is  it  wise  to  regard 
those  attributes  alone,  in  framing  a  government  and  providing  for 
the  administration  of  law  ?    We  do  not  thus  act,  in  regard  to  other 
matters;  we  make  laws  to  punish  vice,  and  all  sorts  of  mischief; 
and  we  expect  them  to  be  enforced.     Against  whom,  are  they  di- 
rected ?     Are  not  those,  who  are  the  objects  of  these  criminal 
provisions,  to  be  found  amongst  the  "people?" — not  the  people 
to  be  sure  in  their  aggregate,  nor  in  their  abstract  character.     The 
"people,"  in  the  sense  in  which  we  practically  come  in  contact 
with  them,  means  that  portion  of  them,  who  have  an  immediate 
and  direct  interest,  or  agency,  in  a  particular  transaction.     We 
must  then  have  respect  to  the  number,  class,  and  character  of 
the  individuals,  with  whom  we  have  to  deal,  in  considering  what 
is  the  object  of  the  proposed  provision  in  our  Constitution ;  we 
must  take  things  as  they  are,  as  we   know  them  to  be ;  we  must 
stand  on  the  platform,  where  the  scene  is  to  enacted,  and  view 
it,  in  actual  exhibition.     Well,  Sir,  let  us  see  how  this  proposed 
measure  is  practically  to  work.     The  people, — thereby  meaning 
those  who  are  thus  alluded  to  in  the  expression,  "a  Judge  depen- 
dant upon  the  people" — act,  by  their  votes — the  only  mode,  in 
which   they  can   act,  or  are  supposed  to  act.     How  are  those 
votes  obtained?     Will  it  be  pretended,  much  less  will  it  be  be- 
lieved,   that    each    man    for    himself,    investigates    the    facts   of 
the  case ;  and   with  a  full   understanding   of  them,  and  of  the 
oblii^ations   of  the   law,    calmly   decides   upon   the   moral   con- 
duct  of  the   Judge,   and  regulates  his  vote  accordingly?     Will 
any   man    say   this?     Sir,  every  man    knows,  that   the   decision 
will  be  the  result  of  prejudice,   or  interest,   of  excited   feelings 
and  passions,  and  a  thousand  motives  not,  at  all,  likely  to  en- 


23 

lighten  the  judgment  or  inform  the  understanding.  And  then, 
whose  votes  are  they?  Are  they  the  votes  of  the  individuals  who 
deposite  their  slips  of  paper  in  the  ballot-box  ?  Yes,  Sir,  in  one 
sense  they  are:  so  far  as  the  mechanical  operation  of  placing 
them  there  is  concerned,  they  are  so;  but  the  mind,  the  will,  the 
end  and  object  expressed  by  the  ballot,  are  those  of  another.  We 
all  know  this.  We  all  know  that  one  man  often  controls  five,  ten, 
twenty,  aye,  fifty  votes.  He  does  not  liiernlly  put  that  number 
of  ballots  into  the  box  ;  but  does  it  virtually  by  the  influence  he 
exerts  over  those  who  do  put  them  there.  We  know  this  to  be 
the  case  every  where ;  we  see  it  here  in  this  body.  It  is  the 
necessary  consequence  of  that  very  feeling  of  our  nature,  against 
which  I  would  guard  your  Judges  ;  it  is  the  effect  of  that  wealth, 
intelligence,  activity,  courtesy,  and  persevering  energy,  which 
give  controlling  influence  to  individuals,  and  enable  them  to 
advance  or  impede  the  interests  of  those  around  them.  It  results, 
in  short,  from  the  partial  state  of  dependance  upon  others. 

And,  Sir,  who  are  those  men  thus  controlling  the  popular 
sentiment  through  the  ballot-box?  Not  your  easy,  quiet,  home- 
staying  folks,  who  meddle  with  nobody's  business;  but  men 
of  exactly  opposite  character;  men  who  actively  participate 
in  public  affairs ;  who  take  part  in  all  the  neighborhood  and 
county  transactions,  make  themselves  useful,  or  at  least  busy, 
by  advising  and  counselling  those  around  them,  in  their  busi- 
ness affairs ;  who  take  the  lead  in  giving  tone  to  all  questions  of 
interest,  and  use  every  effort  to  impress  their  opinions  upon 
others;  either  naturally  excitable,  or  made  so  by  participating  in 
all  the  excitement  within  their  reach;  men  of  exactly  that  class, 
who  are  as  apt  as  any  other  to  be  litigants  themselves;  or  if  not, 
almost  certainly  the  warm  advocates  and  partizans  of  those  who 
are.  Let  us  picture  to  our  minds  the  case  of  such  a  man — an 
opulent,  influential,  popular  leader,  full  of  ardor  in  his  opinions, 
and  very  ample  means  to  induce  others  to  adopt  them — in  the 
attitude  of  a  claimant  in  court,  against  some  unfortunate  person 
who  is  the  reverse  in  all  respects ;  with  a  mean  spirit  and 
ill-contrived  temper  that  make  him  the  object  of  general  dislike. 
Let  these  be  antagonist  parties.  Now  the  mean  man,  whatever 
may  be  the  infirmities  of  his  character;  however  poor,  and  humble, 
and  despised  he  may  be — is  as  much  entitled  to  a  faithful  adminis- 
tration of  the  law — of  that  law  which  knows  neither  rich  nor  poor, 
neither  high  nor  low — of  that  Justice  which  is  appropriately  re- 
presented as  blind — as  the  most  powerful  or  most  popular  man  in 


24 

the  land.  If  one  part  even  of  his  pittance  be  taken  from  him,  or 
indignity  and  injury  be  inflicted  upon  his  despised  person;  he  has  a 
claim  to  redress  as  certain,  and  as  safe,  in  its  application,  as  if  he 
were  a  Governor  in  the  chair  of  State,  or  the  man  whom  the  people 
most  delighted  to  honor.  Sir,  in  a  case  like  this,  the  Judge  is 
called  upon  to  decide ;  and  he  cannot  decline.  How  is  a  just 
and  impartial  decision  to  be  ensured  ?  Let  us  not  be  told,  he  is 
bound  to  do  right.  We  are  all  bound  to  do  right,  but  we  all  fail 
in  some  things;  fallibility,  a  liability  to  do  wrong,  is  the  character- 
istic of  our  being ;  and  by  nothing  are  we  more  likely  to  be  deceived, 
than  by  our  fears  and  our  hopes,  our  interests  and  our  wants. 
Seeino-  this,  we  are  bound  to  use  all  the  means  we  have,  to  guard 
against  the  effect  of  temptation.  What  I  desire  to  impress  upon 
the  mind  of  the  Convention,  is  the  fact,  that  we  must  by  our  pro- 
vision strengthen  on  the  one  hand,  or  weaken  on  the  other,  the 
motive  of  the  Judge.  If  we  protect  him  against  the  influence  of 
the  powerful  antagonist,  we  silence  \ns  fears ;  if  we  place  him 
beyond  the  reach  of  favor,  we  disarm  him  of  his  hopes.  If,  on 
the  contrary,  we  leave  him  in  a  condition  which  exposes  him 
to  the  effects  of  that  man's  power  and  influence,  for  advantage 
or  for  loss,  above  all,  for  subsistence  and  reputation;  you  stimu- 
late every  motive  which  can  disturb  the  honest  and  impartial  action 
of  his  mind.  You  do  this,  by  the  force  of  all  the  circumstances 
actinor  directly  on  the  hopes  and  fears  of  the  officer:  and  you  do 
it,  to  a  further  extent  by  increasing,  to  a  higher  degree,  the  ability 
to  do  mischief,  on  the  part  of  the  influential  litigant.  The  man 
who  knows  that  his  efforts  to  destroy  the  official  character  and 
being  of  the  Judge,  will  be  utterly  hopeless,  does  not  make  them 
with  the  same  earnestness  and  zeal,  as  if  he  knew  they  would  be 
effectual  to  accomplish  his  object. 

But  bad  as  may  be  the  case  arising  from  prejudices  against  the 
Judo-e;  there  is  another  still  worse.  Some  man  has  encountered 
the  bitter  prejudice  of  a  community,  justly  it  may  be,  or  other- 
wise. Such  instances  are  familiar  to  us  all.  We  have  known 
cases,  in  which  this  feeling  has  been  wrought  up  to  such  de- 
termined purpose,  that  the  bolts  and  bars  of  the  prison  could 
not  resist  the  determined  attack  of  the  crowd,  resolved  upon  ven- 
geance. We  have  heard  of  Lynch  law,  and  every  sort  of  law, 
which  can  designate  a  popular  outbreak.  We  have  witnessed 
enough  to  teach  us  that  such  popular  fury  sweeps  every  thing 
before  it,  as  regardless  of  opposition  from  every  element  in  the 
moral  world,  as  the  tempest  in  the  natural.     Yet  popular  prejudice 


25 

against  an  individual,  does  not  forfeit  his  claim  to  the  benefits  of 
the  law.  The  Judge  may  desire  to  avoid  the  interposition  on  his 
behalf,  but  is  not  at  liberty  as  others  are ;  he  must  act,  and  cannot 
disregard  the  appeal  of  the  vilest  or  the  most  persecuted.  His 
interposition  may  delay,  and  finally  defeat,  the  purposes  of  the 
excited  crowd,  assemblage,  or  mob.  If  he  opposes  it,  he  of  course 
offends  it.  Is  he  to  yield  ?  If  so,  the  law  is  prostrated  in  the  per- 
son of  its  minister;  and  an  innocent  man  sacrificed.  And  now, 
Sir,  what  can  you  in  such  a  case  expect  from  your  Judge  "  depen- 
dant upon  the  people  ?"  Will  he  as  fearlessly,  as  firmly  resist  this 
torrent,  this  avalanche  of  feeling  on  the  part  of  those  upon  whose 
favor,  he  relies  for  his  bread,  his  oflicial  being,  and  reputation,  as  if 
he  knew  they  could  not  affect  him  in  any  of  these  respects  ?  Nay — 
not  as  firmly — but  will  he  confront  and  resist  it  at  all  ?  Is  he  inde- 
pendent in  any  sense,  that  enables  him  to  do  his  duty,  as  we  re- 
quire him  to  do  it,  and  as  he  ought  to  do  it, — "  without  fear ,  favor ,  or 
affectionV  He  must  be  more  than  man  to  be  altogether  free  from 
such  influences.  But,  admitting  the  Judge  will  not  "  do  right," 
it  is  still  said,  "the  people  will  do  right" — "there  is  no  danger 
in  trusting  the  people."  I  reply.  Sir,  that  both  history  and  phi- 
losophy contradict  this.  The  people  consist  of  individuals,  each 
of  whom  is  subject  to  the  same  passions,  the  same  prejudices, 
the  same  motives  of  action.  The  mass,  composed  of  such  ele- 
ments, must  have  the  same  character.  My  experience  is,  that  the 
collection  of  men  in  masses,  lessens  materially,  if  it  does  not 
destroy,  the  sense  of  responsibility.  It  is  a  truth  we  have  all 
been  taught  by  observation,  as  well  as  by  history.  It  must  be  so 
from  the  mere  fact  that  each,  to  a  certain  degree,  escapes  from 
the  influence  of  one  very  strong  motive  to  do  right ;  he  does  not 
stand  out  before  the  public  as  the  object  of  their  notice,  but  is 
protected  to  the  extent  of  the  combined  credit  of  all  the  party.** 
But  let  us  go  further.  Men  every  where  act  alike,  under  like 
circumstances.  Our  people  are  like  each  other,  and  we  are  like 
other  people,  whenever  the  circumstances  and  conditions  of  being, 
the  motives  and  influences  are  the  same.  Sir,  I  find  from  a  news- 
paper received  a  day  or  two  since,  that  the  people  of  a  large  city 
in  Pennsylvania,  containing  about  80,000  inhabitants,  had  elected 
as  their  Mayor  a  very  unfit  man,  that  he  had  been  regularly  tried 
before  a  Court  and  Jury,  and  convicted  of  riot,  which  is  a  gross 
crime  ;  and  when  after  this  he  harangued  the  people,  they  cheered 
him  loudly  and  avowed  their  determination  lo  elect  him  to  Con- 
4 


26 

gress.  Now,  they  are  just  such  people  as  we  are,  as  intelligentj 
as  patriotic  and  as  submissive  to  law  and  order  ;  as  much  so  as  we 
would  be,  if  similarly  excited.  They  labor  under  temporary  mania ; 
prejudice  and  passion  cloud,  if  they  do  not  blind,  their  judgment. 
And  who,  I  ask,  is  free  from  those  influences  ?  Is  there  one 
who  hears  me  who  can  say,  he  has  not  been  -the  victim  of  excited 
passion  ?  No,  Sir,  there  never  has  been  on  earth,  but  one  man; 
and  He  was  more  than  a  man.     There  never  will  be  another. 

Again  : — it  is  said,  that,  heretofore  the  Judge  has  been  appointed 
from  political  considerations;  and  I  admit  that  this,  or  any  other 
argument,  which  is  intended  to  show  the  defects  of  the  present  sys- 
tem, or  mode  of  appointment,  is  worthy  of  consideration.  If  that 
mode  which  the  people,  in  the  exercise  of  their  proper  sovereignty 
have  prescribed,  does  not  accomplish  its  object,  it  is  a  fair  argument 
for  a  change.  But  it  must  be  perfectly  clear,  that  the  objection 
applies  merely  to  the  mode  of  appointment ;  and  that,  as  I  have 
constantly  maintained,  is  a  secondary  consideration.  It  does  not 
touch  the  great  and  important  question  which  I  have  endeavored 
to  discuss,  that  of  the  tenure — the  question  which  involves  the 
essential  element,  in  the  character  of  the  office — that  is,  the  "in- 
dependence" of  the  Judge.  But  while  I  admit  the  propriety  of 
considering  the  defects  of  the  existing  system,  I  cannot  omit — 
what  must  occur  to  every  intelligent  mind — the  further  propriety 
of  inquiring  how  far  the  proposed  remedy  will  meet  the  objection, 
and  remove  the  evil?  I  do  not  know  however  the  history  of  all 
the  Judges.  I  do  not  know  that  Judge  Hanson  was  a  politician ; 
or  that  Judge  Chase  was  a  politician.  Every  man,  it  is  true,  of 
any  character  and  standing,  will  belong  to  one  political  family, 
or  the  other,  when  the  whole  country  is  divided  into  two  great 
parties ;  and  if  that  be  a  reason,  why  he  should  not  be  appointed 
to  office,  you  will  be  obliged  to  select  from  a  class  of  persons,  who 
are  below  the  ordinary  grade  of  intellect.  But  let  the  objection, 
be  applied  to  politicians  in  the  broadest  sense  of  the  term — the 
question  recurs — Will  there  be  a  greater  probability  of  excluding 
such  politicians,  upon  the  gentleman's  plan  of  proceeding?  If 
not,  the  objection  proves  nothing.  It  is  to  propose  a  dose  of 
medicine,  which  will  certainly  add  its  sickening  influence  to  the 
discomfort  occasioned  by  the  disease,  and  the  result  of  which, 
after  the  sickness  has  gone  off",  is  either  the  death  of  the  patient, 
or  at  best,  a  condition  certainly  not  improved.  I  confess,  I  have 
no  taste  for  such  practice. 


27 

^pril  18.    Judge  Chambers  resumed. 
Mr.  President: 

My  chief  effort  has  been  to  show,  that  an  independent  Judi- 
ciary is  essential  to  the  well-being  of  the  government — meaning 
thereby  the  people  of  the  State — and  emphatically  that  portion  of 
them,  for  whose  benefit  and  protection,  that  branch  of  the  govern- 
ment is  designed.     I  incline  to  believe,  from  what  I  have  heard 
from  every  quarter,  since  my  remarks  of  yesterday,  that  this,  as  a 
general  proposition,  will  not  be  denied.     It  is  true,  the  gentleman 
from  Prince  George's  pronounced  it  a  British  doctrine,  not  conso- 
nant to  the  genius  of  American  institutions.     From  other  parts  of 
his  remarks,  however,  I  infer  that  his  denunciation  was  directed, 
not  against  the  principle  of  Judicial  Independence,  but  against  the 
"  tenure  during  good  behaviour."     Mr.  President,  it  is  scarcely  a 
sufficient  reason  for  condemning  a  principle,  to  say,  it  is  of  English 
origin.     Where  did  we  obtain  our  notions  of  Civil  Liberty,  of  the 
Rights   of  property,  of  person,   and  of  conscience — nay,  all   the 
rights  we  claim?     From  whom  did  we  derive  our  affection  for  the 
fundamentals  of  a  Government  of  law,  the  habeas  corpus  and  the 
Trial  by  Jury?     Did  not  these  and  other  principles,  dear  to  us  all, 
come   from   our  Anglo-Saxon   ancestors  ?     They   are   as   old,   as 
American  principles,  as  the  American  branch  of  the  Anglo-Saxon 
family  ;  and  I  trust,  they  will  endure,  so  long  as  the  race  continues. 
Yes,  Sir,  it  is  an   English  doctrine — this  doctrine  of  Judicial  In- 
dependence— and  by  some  of  the  best  and  wisest  men  here,  and 
in  every  portion  of  the  civilized  world,  it  has  been  regarded  as  a 
glory  to  the  nation.     Allow  me.  Sir,  to  read  from  a  distinguished 
author — "every  inch  an  American,'' — the  view  he  entertains  upon 
this  subject.     Yesterday  I  gave  an  instance  of  the  practice,  under 
the  old  system,  by  which  the  King  made  the  law  and  its  ministers 
bend  to  his  will.     Now  hear  what  Judge  Story  says,  has  occurred, 
during  the   hundred   and   fifty  years   since   the  abolition   of  that 
system: — "Since  the  independence  of  the  Judges  has  been  se- 
"  cured  by  this  permanent  duration  of  office,  the  administration  of 
"justice  has,  with  a  single  exception,  flowed  on  in  England,  with 
"  an  uninterrupted,   and  pure  and  unstained  current.     It  is  due 
"  to  the  enlightened  tribunals  of  that  nation  to  declare,  that  their 
"learning,  integrity  and  impartiality,  have  commanded  the  rever- 
"  ence  and  respect,   as  well  of  America,  as  of  Europe."     In  a 
note  to  this  strong  commendation,  the  author  gives  the  names  of 
several  distinguished  writers,  who  fully  concur  with  him. 


28 

Sir,  I  propose  to  show  further,  that  this  English  doctrine,  as  the 
gentleman  terms  it,  has  been  transplanted  ;  has  here  found  a  more 
appropriate  location,  and  has  flourished  with  renewed  vigor ;  and 
that  it  is  more  in  harmony  with  republican  Institutions,  than  with 
any  other  on  the  face  of  the  globe.  I  yesterday  ventured  this 
assertion ;  and  with  the  advantage  of  the  recess,  I  have  been  able 
to  procure  some  authority  to  sustain  it.  First,  in  order,  and  first 
in  authority,  I  will  quote  the  opinions  of  the  wise  and  great  and 
good  men,  who  announced  our  separation  from  the  parent  country 
— a  class  of  men,  whose  wisdom  will  not,  I  fear,  be  surpassed  by 
that  of  any  age  we  are  to  witness ;  whose  patriotism,  (if  I  could) 
I  would,  with  all  my  heart,  hope  to  see  equalled ;  and  whose  sole 
motive  and  object  was  the  good  of  the  whole  country.  Among 
the  causes  of  complaint,  upon  which  they  based  their  opposi- 
tion to  the  British  government ;  and  upon  which  they  urged  an 
eternal  separation,  stands  prominently  this: — "  7%e  king  had 
made  Judges  dependant  on  his  will  alone,  for  the  tenure  of  their  of- 
fices, and  the  amount  and  payment  of  their  salaries."  Yes,  Sir,  it 
was,  in  part,  to  secure  the  fixed  and  settled  tenure  of  the  Judi- 
ciary, that  the  war  of  ihe  Revolution  was  waged.  But  they  did 
not  stop  at  such  a  declaration,  in  their  Bill  of  rights — the  Decla- 
ration of  Independence.  They  were  as  practically  wise  and 
thoughtful,  as  they  were  patriotic.  They  were  as  sensible  of  the 
necessity  of  providing  a  remedy  useful,  and  efficient,  as  they  were 
sagacious  in  discovering  the  defect.  Hence,  one  of  the  most  con- 
spicuous elements,  in  the  Constitution  of  the  United  States,  is  the 
perfect  Independence  of  the  Judiciary,  firmly  guaranteed  by  a 
permanent  tenure.  In  the  third  Article,  means  are  used  to  secure 
this  necessary  principle.  It  contains  the  genuine  English  doctrine, 
improved,  transplanted,  and  incorporated  with  other  cherished 
principles,  which  will  last  while  freedom  has  a  home.  The  lan- 
guage is  as  follows : — "  The  Judges,  both  of  the  Supreme  and  in- 
ferior Courts,  shall  hold  their  offices  during  good  behaviour ;  and 
shall,  at  stated  times,  receive  for  their  services,  a  compensation  which 
shall  not  be  dimiiiished  during  their  continuance  in  office."  Sir, 
there  is  not,  in  the  wide  world,  a  written  Constitution  containino- 
so  noble  and  perfect  a  truth,  as  is  implied — indeed,  it  may  be  said, 
expressed — in  this  language.  It  goes  beyond  the  English  system ; 
and  goes  beyond  ours  in  Maryland.  There  is  no  removal,  by  the 
address  of  any,  or  all  the  other  departments  of  the  government. 
Nothing  but  misconduct,  a  charge  of  misbehaviour  in  office,  sus- 
tained by  proof,  will  remove  a  Judge  of  the  United  States.     And 


29 

how,  Sir,  was  this  received  by  men  thoroughly  imbued  with  that 
American  spirit,  that  love  of  republican  liberty,  which  forms  the 
best  security  for  our  hopes?     The  Federalist — not  only  one  of 
the  ablest  publications,  but  decidedly  the  ablest  of  that  day,  com- 
ing, as  it  did,  from  the  pen  of  Mr.  Madison,  and  other  patriots — 
considers  this,  as  one  of  the  brightest  gems  in  the  Constitution  of 
the  United  States.  (Judge  Chambers  here  read,  from  the  Federalist, 
several  passages  to  the  point.)     The  most  distinguished  American 
jurists,  (he  said,)  have  concurred  in  the  opinion.     Wilson,  Tucker, 
Story,  all,  who  have  deeply  and  thoroughly  investigated  the  subject, 
all  concur,  in  regarding  this  j)rinciple,  as  the  great  sheet  anchor, 
by  which  our  national  ship  of  state  is  secured.     (He  here  read 
several  of  these    authorities,  and  said:) — I  would  invoke,  Mr. 
President,  for   these    opinions,   the    most   devoted    attention.      I 
do  not  claim  it  for  the  sake  of  my  own  argument,  but  because 
it  is  the  written  recorded  counsel  of  men,  who  were  ornaments 
of  the  age  in  which  they  lived — men  of  undoubted  intelligence 
and  wisdom,  and    of  undoubted  purity.     Sir,  I  speak   from    no 
motive  to  obtain  approbation  from  any  quarter;  I  speak  from  a 
deep,  a    solemn,  and    abiding  conviction,  that  I  am   addressing 
men  about  to  perform  a  duty,  the  consequences  of  which  will  be 
felt  for  weal  or  for  wo,  through  all  time,  by  every  portion  of  our 
community.    If  the  question  were  merely  to  take  one  man  from 
the  bench,  and  put  another  in  his  place,  it  would  be   compara- 
tively   insignificant.     But   here    the    highest   possible   obligations 
teach  us  to  regard  ourselves,  as  the  guardians  of  all  the  immense 
interests  involved  in  this  great  subject.     An  experiment,  which  is 
tried  to-day,  and,  if  it  fails,  leaves  us  to-morrow  to  return  to  our 
condition,  is  a  trifle.     If  it  affected  only  our  pecuniary  interests, 
they  might  be  repaired  ;  if  it  operated,  only  upon  matters  of  party 
dominion  ;  it  might  be  submitted  to,  for  a  time.     But  here  is  a 
step  proposed,  which  can  never  be  retraced;  here  are  interests 
far  beyond  the  temporary  possession  of  political  power,  or  wealth  ; 
interests  dear  to  every  human  being  in  society,  in  every  relation 
they  bear  to  each  other,  and  for  all  coming  time.     The  rights  at 
stake  are  the  rights  of  person,  the  rights  of  property  and  of  re- 
putation.    And  pray.  Sir,  what  other  rights,  as  citizens,  can  we 
have?     All  we   hold  dear,  is  included.     I  disclaim,  with  disdain, 
all  political   influences.     Upon  other  occasions  I  have  felt  them, 
nor  have  I  disguised  them  ;  but  on  a  great  subject  like  this,  affect- 
ino-  all  portions  of  the  State,  party  considerations  sink  into  utter 
and  absolute  insignificance.     Parties  will  rise  and  rule,  and  pass 


30 

away ;  but  the  administration  of  law  and  justice,  and  the  protec- 
tion and  security  of  all  our  rights,  civil  and  social,  should  be  per- 
petual. I  hope  every  gentleman  here  will  forget  not  only  his  po- 
litical interests,  but  his  political  prejudices  and  antipathies,  if  he 
has  indulged  any.  The  poor,  the  injured,  the  oppressed,  the  help- 
less— the  orphan — the  desolate  widow — all,  who  are  objects  of  the 
care  and  concern  of  government, — all  appeal  to  us,  as  the  guar- 
dians of  their  interests  ;  all,  who  now  or  who  may  hereafter  occupy 
a  place  in  these  classes,  in  the  long  line  of  generations  yet  to 
succeed  us ;  all  call  upon  us  to  provide  for  their  security.  If  you 
fail  to  provide  for  them,  and  to  do  it  now ;  the  neglect  can  be 
repaired  by  no  human  power.  They  can  look  for  it  no  where,  but 
in  the  firm  and  unbending  course  of  the  law ;  and,  if  now,  by  our 
action,  that  course  be  checked ;  if  the  fountain  be  now  polluted, 
or  its  stream  disturbed;  no  time,  no  power  hereafter  can  restrain 
the  erratic  current,  or  purify  its  source. 

We  have  seen  the  opinion  of  the  sages  who  framed  our  admi- 
rable system  of  government  for  the  United  States.  Let  us  now, 
for  a  moment,  attend  to  the  lesson  taught  us,  by  those  distinguish- 
ed men,  who  framed  our  own  State  institutions.  Veneration  and 
respect  have  universally  been  accorded  to  them.  Their  devotion 
to  free  principles  of  government  was  unbounded ;  their  intelli- 
gence unquestioned.  Their  work,  and  all  we  know  of  them, 
commend  them  to  our  highest  regards.  Above  all,  they  lived  at  a 
period,  and  under  circumstances,  which  led  them  to  employ  all 
their  noble  faculties,  without  any  mixture  of  sectional,  personal  or 
party  feelings,  or  interests.  All  were  patriots ;  all  pursued  one 
common  object — the  common  good.  Ambition,  and  the  love  of 
office,  had  not  exerted  their  evil  influence,  upon  their  passions  and 
prejudices,  nor  warped  their  judgments.  All  were  governed  by  the 
high  and  holy  sense  of  duty  to  the  State.  I  am  not  to  be  told,  Mr. 
President,  of  the  progress  of  the  age,  the  change  in  men  and 
things  since  their  day.  It  is  most  true,  we  have  witnessed  aston- 
ishincr  changes,  such  as  our  ancestors,  even  in  '76,  never  thought 
of,  in  the  wildest  dreams  of  fancy.  But,  in  what  departments 
are  those  changes  ?  Surely,  not  in  the  eternal  laws  of  truth 
and  morals.  These  are  co-existent  with  the  Deity.  They 
are  eternal,  as  his  throne.  They  came  down  to  man,  with  the 
immortal  spirit,  which  his  Maker  breathed  into  him,  as  his  life. 
Proo-ress  may  be  made,  in  arts ;  in  science  ;  in  the  various  appli- 
cations of  the  great  principles,  which  govern  matter ;  in  the  dis- 
covery of  new  principles,  if  you  please,  as  well  as  in  the  modifica- 


31 

tion  and  application  of  such  as  are  known  :  and  in  all  inventions, 
which  adapt  such  principles  to  the  use  of  our  race.  But  the  laws 
of  moral  truth  and  moral  propriety  are  immutable.  You  may 
adapt  the  great  principle  and  power  of  Steam  to  the  propulsion  of 
the  car;  or  you  may  adopt  the  still  more  wonderful,  but  subtile 
power  of  the  electric  fluid,  in  the  transmission  of  thought.  But 
the  obligations  of  the  moral  law  are  the  same  amid  all  these  vast 
changes.  Consider,  fpr  a  moment.  Sir,  how  palpable  this  is. 
Because  we  now  travel  across  the  Atlantic  in  less  than  ten  days, 
instead  of  occupying  forty ;  is  it  therefore  less  a  violation  of  the 
moral  law,  to  seize  our  neighbor's  property  or  abuse  his  person  ? 
These  immutable  laws  are  modified  and  applied  to  varying  circum- 
stances as  they  arise,  and  Infinite  Wisdom  has  made  them  capable 
of  adaptation  to  every  condition  that  can  occur.  But  they  are 
the  same  moral  truths  by  which  all  human  action  must  be  con- 
trolled ;  the  same  now,  as  they  were  in  1776,  and  ever  must  be. 
The  great  truth  which  the  Bill  of  Rights  declares,  is  in  these 
terms:— "The  independency  and  uprightness  of  judges  are  es- 
sential to  the  impartial  administration  of  justice,  and  a  great  secu- 
rity to  the  rights  and  liberties  of  the  people."  Mark  this  strong 
word,  Sir — "  essential."  This  was  true  in  the  time  of  William  III ; 
equally  true  1st  George  III ;  true  in  1776  ;  is  true  now  ;  and  ever 
will  be  true,  just  so  long  as  justice  is  administered  ;  just  so  long 
as  lust  and  pride,  avarice  and  ambition,  and  other  evil  propensities 
afilict  human  beings  and  require  restraint.  Now,  Sir,  the  next 
clause,  in  this  sentence,  has  a  volume  of  instruction.  It  shows, 
beyond  all  cavil,  what  these  framers  of  our  Constitution  under- 
stood by  this  essential  —  "independence."  Let  me  read: — 
"  Wherefore  the  Chancellor  and  Judges  ought  to  hold  com- 
missions during  good  behaviour."  There  is  no  mistaking  this. 
Judges  must  be  independent — that  is  assumed  as  the  premises; 
wherefore  they  must  have  a  tenure,  during  good  behaviour — this  is 
the  direct,  the  necessary  conclusion ;  and  never  w  as  one  more 
just.  The  Article,  in  the  Constitution  of  the  United  States, 
received  the  vote  of  every  member  of  the  body,  that  framed 
it;  nor  is  there,  in  the  history  of  the  Convention  of  1776,  as  far 
as  I  have  been  able  to  trace  it,  the  least  reason  to  believe,  it  was 
adopted  in  Maryland,  with  less  unanimity. 

Now,  Mr.  President,  I  wish  to  show  that  some,  indeed,  all 
our  ablest  jurists,  have  concurred  in  the  opinion,  that  the  pecu- 
liarities of  our  republican  Institutions  are  precisely  those,  which 
most  emphatically  require  a  persevering  adherence  to  this  old, 


32 

and  venerated  truth.     (Judge  C.  here  read  extracts  to  show  the 
opinions  of  Professor  Wilson,  in  his  Lectures — Chancellor  Kent, 
in  his  Commentaries — Mr.  Rawle,  in  his  Treatise  on  the  Consti- 
tution— Judge   Tucker — Judge   Hopkinson — and    Judge    Story.) 
Indeed,  Sir,  (said  Judge  C.,)  until  lately,  since  a  spirit  of  change 
has  become  so  rife  in  our  midst,  there  was  no  name  high  on  the 
roll  of  fame,  so   far  as  I  am  informed — there  was  no   one,  who 
doubted  on  this  subject,  except  Mr.  Jefferson ;  and  he  was   an 
exception,  only  in  his  later  days.     His  Notes  on  Virginia  speak  a 
different  language,  and  more  in  harmony  with  his  cotemporaries, 
and  associates.     I  do  not  mean  to  assert  that  the  reasons  for  his 
change  of  opinion  were  of  a  personal  character ;  but  I  may  be 
permitted  in  this  connexion,  to  relate  an  incident,  as  I  received 
it  from  the  lips  of  President  John   Quincy  Adams.     Every  man 
knows    the    permanent   influence    upon    his    current    of  thought 
produced  by  a  particular  fact,  made  especially  impressive  by  ac- 
companying circumstances;    like  the  traveller,  in   the  Knicker- 
bocker, who,  passing  through  New  Jersey,  was  annoyed,  at  some 
stopping-point,  by  a  drunken  democrat  and  a  vicious  dog;  and 
who  for  ever  thereafter  held  both  dogs  and  democrats  in  utter  ab- 
horrence.   Mr.  Adams  did  not  assert  that  the  incident  was  the  cause 
of  Mr.  Jefferson's  change  of  opinion,  nor  do  I.    Every  one  may  draw 
what  inference  he  thinks  justified  by  the  facts,  which  are  these  : — 
When  Judge  Chase's  impeachment  was   first  determined   upon, 
it   was  the  intention    of  Mr.  Jefferson  to    have    him    convicted ; 
and,   if  this   beginning   was   well   received,    to    follow  it  up   by 
impeaching  others   on   the  Bench.     It   so    happened,  that   dur- 
ing that  session  of  Congress,  Mr.  Randolph  had  acquired  more 
popularity  and  power  in  the  House  of  Representatives,  than  any 
man  before   or   since.     Many  instances  to    prove   this,  could   be 
given.     Mr.  Randolph  had  an  ambition  to  fill  the  chair  of  Chief 
Magistrate  ;  and  to   strengthen   his  pretensions,  it  was  important 
to    show  that   his    influence   and    power  were  felt,   in  the   Sen- 
ate,   as    well    as    in    the    House.      He    accordingly    had    himself 
put  in  the  very  conspicuous  position  of  chairman  of  the  man- 
gers or   committee  of  impeachment.       Mr.    Jefterson    had    very 
different  views  about  the  succession.     He  had  determined,  that 
Mr.    Madison    must   be    the    man  ;     but   began    to    perceive    the 
danger  which  might  arise  from  the  brilliant  and  successful  career 
of  Mr.    Randolph.     From    that  time,    said   Mr.   Adams,    Judge 
Chase's  acquittal  was  resolved  upon — Mr.  Randolph's  discomfiture 
and  Mr.  Madison's  success  followed ;  and  Mr.  Randolph  never, 


33 

to  the  day  of  his  death,  forgave  Mr.  Jefferson,  whose  whole  plan 
he  perfectly  understood.  "And,"  said  Mr.  Adams,  "if  you  will 
examine  the  votes,  you  will  find  amongst  those  for  acquittal  some 
of  the  warmest  personal,  as  well  as  political  friends  of  Mr.  Jeffer- 
son ;  for  instance,  Giles  of  Virginia,  Jackson  of  Georgia,  and 
others."  It  was  certainly  late  in  life,  when  Mr.  Jefferson  changed 
his  opinions.  Mr.  Justice  Story,  who  was  one  of  his  warm  friends 
and  admirers,  whom  Mr.  Jefferson  appointed  to  office — one  of  the 
most  useful  acts  of  his  life,  by  the  way — in  speaking  of  the  hos- 
tility of  Mr.  Jefferson  to  the  judicial  department,  stated,  that  he 
wrote  on  the  subject  "apparently  with  the  feelings  of  a  partizan, 
and  under  influences,  which  his  best  friends  will  most  regret." 
With  this  one  exception,  we  have  the  uniform  sentiment  of  a  host 
of  wise,  experienced  and  honest  men,  and  patriots,  testifying  to 
the  truth  of  the  ancient  creed  ;  and  assenting  to  the  further  truth, 
that  of  all  conditions  of  human  society,  that  of  a  free  republican 
government  like  ours,  is  especially  that  condition,  in  which  it 
operates  with  the  best  effect,  and  where  it  is  in  the  highest  sense 
essential.  Our  institutions  require,  that  the  judicial  arm  should 
be  strong  enough  to  resist  the  onslaught  of  factious  and  turbulent 
associations,  or  any  pressure  from  popular  movements,  as  well  as 
the  machinations  of  intriguing  politicians  and  demagogues ;  and 
to  control,  within  Constitutional  bounds,  the  action  of  the  legis- 
lative, and  executive  departments. 

In  speaking  of  popular  feeling,  a  piece  of  instructive  his- 
tory occurs  to  my  mind  illustrative  of  the  difficulty  of  ascertain- 
ing what  this  feeling  is;  and  of  the  facility  of  mistake  upon  the 
subject.  Allison,  in  his  History  of  Europe,  says,  that  of  the  one 
hundred  thousand  spectators  who  silently  consented  to  the 
death  of  Louis  XVI,  there  were  not  one  hundred  who  would  not, 
most  willingly,  have  saved  him  from  destruction.  This  illustrates 
the  idea  which  I  have  endeavored  to  urge — that  what  is  often 
regarded  as  popular  opinion,  is  a  factitious  affair;  the  mere 
clamor  of  a  few  prominent,  and  mischievous  individuals.  I  do 
not  mean  to  say,  that  Louis  XVI  did  not  violate  his  duties;  he 
may  have  deserved  expulsion;  so  far  as  my  argument  is  con- 
cerned, he  may  have  deserved  capital  punishment;  but  what  I 
say  is,  he  was  in  fact  murdered,  and  that  the  notion  of  submit- 
ing  his  case  to  trial  and  the  verdict  of  a  whole  people,  was  a 
mockery  of  justice,  and  a  false  assumption  of  popular  sentiment. 
Robespierre  was  taken,  as  the  embodiment  of  public  opinion  ;  and 
5 


34 

yet  when  Tallien,  impelled  by  the  knowledge  that  his  own  exe- 
cution had  been  decreed  in  conclave,  ventured  in  full  conven- 
tion to  denounce  that  monster  in  human  form,  that  personation 
of  all  that  is  fiendish  ;  and  to  seize  him  as  a  traitor — what  was 
the  result?  Why,  Robespierre  was  hurried  to  the  same  guillo- 
tine, from  which  he  had  caused  rivers  of  blood  to  flow;  and  be- 
headed amidst  thundering  shouts  of  applause,  from  the  thousands 
whose  homes  had  been  made  desolate,  without  the  sympathy  of 
one  earthly  being.  Sir,  nothing  is  more  dangerous,  than  to  as- 
sume readily  what  is  the  popular  sentiment;  and  there  is  nothing, 
in  the  condition  of  this  country,  to  make  mistake,  on  this  subject, 
impossible.  The  people  of  France,  and  especially  of  Paris,  were 
in  the  possession  of  means  not  inferior  to  those  of  other  na- 
tions, for  the  cultivation  of  their  intellectual  and  moral  as  well  as 
political  capabilities.  They  considered  themselves  in  advance  of 
the  rest  of  the  world.  I  may  be  permitted  to  give,  in  proof  of 
this,  a  conversation  I  had  with  a  very  distinguished  man,  who  was 
an  actor  in  the  scenes  of  the  French  Revolution  ;  a  man,  whose 
memory  is,  as  it  should  be,  and  as  I  hope  ever  will  be,  very  dear 
to  every  American;  a  man  to  whom,  in  his  own  country,  the  honor 
and  distinction  to  which  he  was  justly  entitled  were  never  ren- 
dered, only  in  consequence  of  the  dread  and  jealousy  of  Bonaparte. 
On  the  memorable  occasion  of  the  visit  of  La  Fayette  to  this  country, 
some  five  and  twenty  years  since,  by  the  invitation  of  the  Congress 
of  the  United  States,  it  was  the  good  fortune  of  my  friend,  who  sits 
before  me  (Gen.  Howard)  and  myself,  to  be  the  Committee  appoint- 
ed by  our  Legislature  to  attend  upon  him,  during  his  visit  to  Anna- 
polis as  the  guest  of  this  State.  In  the  conversation  which  occurred 
in  the  stage,  on  our  return  to  Washington,  allusion  was  made  to 
the  political  schools  in  Germany,  where,  I  supposed,  many  young 
men  after  receiving  sound  notions  of  free  institutions,  would  incul- 
cate them,  to  an  extent  greater  perhaps  than  they  had  obtained  in 
any  other  part  of  Europe.  The  old  patriot  answered  with  marked 
spirit  and  promptness: — "No,  Sir,  'lis  in  France,  that  the  large 
body  of  enlightened  men  best  understand  the  true  principles  of 
rational,  civil  and  political  liberty,  and  there  the  first  successful  effort 
will  be  made  to  introduce  a  government,  securing  to  men  their 
proper  rights."  Yet,  in  France  were  exhibited  the  scenes  we  have 
reviewed.  But,  Sir,  we  need  not  go  abroad  to  find  instances  of 
popular  delusion.     What  do  we  witness  at  this  moment — passing 


35 

around  us— -amonsst  our  own  fellow-citizens — on  American  soil — 
by  American  people  ?  What  are  we  deploring  as  an  awful  cala- 
mity? What  makes  us  tremble  for  the  very  existence  of  our  insti- 
tutions and  all  the  inestimable  blessings  involved  in  their  perpe- 
tuity? Is  it  not  the  delusion,  the  excitement,  the  frenzy,  the 
madness  of  our  people?  Not  of  this  one,  that,  or  the  other,  but 
of  immense  masses,  whole  communities,  rushing  with  an  impetu- 
osity that  seems  to  defy  resistance,  not  only  to  their  own  destruc- 
tion, but  to  the  destruction  of  that  stupendous  fabric  which  has 
cost  so  much  precious  blood  and  so  much  anxious  toil  and  care 
to  construct  and  preserve  ?  What  is  abolitionism  doing,  at  this 
moment?  Do  we  not  know  what  has  been  passing  in  Boston,  in 
Springfield,  and  in  various  other  places,  and  what  is  still  passing 
in  the  North?  Are  we  justified  in  assuming  that  scenes  of  a  like 
character,  though  doubtless  from  different  motives,  will  never  be 
enacted  in  Maryland?  Are  we  more  enlightened — or  better  edu- 
cated— or  more  deeply  versed  in  the  science  of  government? 
Until  fanaticism  deranged  those  men,  they  had  as  just  conceptions 
as  we  have,  of  political,  moral,  and  religious  obligations;  the  love 
of  liberty,  and  the  love  of  law,  were  as  deeply  inscribed  upon  their 
minds  and  hearts  as  upon  ours;  patriotism  flourished  and  was 
cherished  no  where,  more  than  in  the  old  Bay  State,  and  around 
Faneuil  Hall;  and  yet,  in  despite  of  all,  a  phrenzied  impulse  has 
made  havoc  of  every  sense  of  duty,  they  owe  to  their  Country, 
and  its  laws.  Yes,  Sir,  they  were  true  men  and  will  be  so  again. 
This  madness  cannot  last.  No,  Sir,  no.  We  have  not  yet  so 
sinned,  as  a  nation,  as  to  deserve  the  curse  of  ruin,  the  curse  of 
disunion.  It  is  an  impeachment  of  the  great  attributes  of  mercy 
and  of  justice  which  belong  to  the  Deity,  to  say  or  to  think  so.  It 
is  a  condition,  not  of  idiotcy  but  of  lunacy  ;  and  a  lucid  interval  will 
recur,  a  long  and  lasting  interval,  I  hope.  But  upon  the  theory  of 
an  "  independent  judge  dependant  upon  the  people" — how  would 
it  work  in  the  interim  ?  Fortunately  for  the  Country,  we  have 
had  a  Sprague,  a  Woodbury,  a  Nelson,  a  Grier,  and  other  such 
firm  and  faithful  men,  independent  of  all  popular  clamor  ;  holding 
their  "commissions  during  good  behaviour;"  who  standing  on  the 
rock  of  real  independence,  have  fearlessly  opposed  the  storm. 
This  you  could  never  rationally  expect  from  one,  who  depended, 
for  his  official  life,  and  character,  upon  popular  favor.  Such  a  man 
would  have  trembled  and  quailed  before  the  infuriated  mob,  as  a 
captive  slave  before  his  master.  Mr.  President,  while  speaking  of 
the  influence  of  an  excited  multitude  on  the  administration  of 


36 

justice,  on  this  holy  day  (Good  Friday,)  I  cannot  help  thinking  of 
a  case  which  occurred  more  than  1800  years  ago ;  and  which  the 
Church,  of  which  I  am  a  most  unworthy  member,  the  Episcopal 
Church,  this  day  commemorates,  with  the  highest  solemnities. 
An  illustrious  victim  of  popular  rage  was  brought  before  Pontius 
Pilate;  who  heard  the  proofs  and  pronounced  him  guiltless — 
faultless.  "I  find  no  fault  in  him,"  said  he;  and  washed  his 
hands,  in  token,  (poor  refuge  as  it  was,)  of  his  freedom  from  the 
crime  of  murdering  an  innocent  man.  But,  Sir  the  infuriated 
crowd  would  not  forbear;  and  they  were  wont  to  be  indulged. 
What  signified  the  innocence  of  the  meek,  but  august  prisoner  ? 
Sir,  that  fiend-like  cry  went  forth.  ''Crucify  him!"  ''crucify 
him!"  rent  the  air.  "His  blood  be  upon  us  and  upon  our  chil- 
dren ?"  And  all  that  was  human  of  the  Saviour  of  the  world, 
was  put  to  a  shameful  death.  Mr.  President,  human  passion  will 
now  and  here  disarm  human  judgment,  just  as  it  did  in  the  days 
of  Pontius  Pilate,  at  the  city  of  Jerusalem. 

I  am  aware,  Sir,  that  it  is  said  the  people  are  competent  to  elect 
other  officers  ;  and  if  so,  why  not  to  elect  judges  ?  Now,  in  the  first 
place,  my  argument,  as  I  have  said,  is  not  so  much  directed  against 
a.ny  particular  mode  of  appointment,  as  it  is  to  prove  the  necessity 
of  a  tenure  during  good  behaviour.  It  is  this  "  essential"  feature, 
which  I  regard  as  above  all  other  considerations.  But,  Sir,  there 
are  ample  reasons  in  my  judgment  to  distinguish  this  case  from 
that  of  the  election  of  political  oflicers.  The  latter  are  chosen 
expressly  to  represent  the  political  opinions  of  those  who  elect 
them  ;  to  give  their  vote,  as  they  would  give  theirs ;  to  represent 
their  opinions,  wishes  and  feelings.  They  can  require  them  to  do 
all  this;  and,  if  they  fail,  they  will,  and  do  dismiss  them;  and 
elect  others.  Take  an  illustration — I  want  an  agent  to  perform 
for  me  some  portion  of  my  current  duties,  which,  in  the  aggre- 
gate, are  too  numerous  to  allow  me  to  attend  to  minutely.  I 
have  several  farms,  and  want  an  agent  or  overseer  for  each.  I 
require  him  to  consult  my  judgment;  and  to  conform  to  it,  in 
regard  to  the  character  of  the  crops  he  is  to  rear ;  the  field  he  is 
to  cultivate  ;  and  even  the  details  of  the  duty  he  is  to  perform. 
If  he  fails,  I  institute  no  process  of  judicial  inquiry;  conduct  no 
formal  investigation.  I  put  him  away  at  the  end  of  the  year  and 
get  another.  He  does  not  represent  my  wishes,  nor  execute  my 
plans.  That  is  the  sort  of  relation  which  a  representative  bears 
to  his  political  constituency.  Now  take  another  case — As  a  mem- 
ber of  a  Board  of  Visitors,  I  want  a  Professor  in  the  College.    He 


37 

is  to  perform  the  duties  appropriate  to  his  station — say,  to  teach  his 
pupils  Latin  and  Greek,  according  to  the  most  approved  system; 
a  duty  which  I  could  not  perform  myself;  and  of  course  the  last 
thing  I  desire,  is,  to  have  him  do  what  I  would  do,  if  I  were 
myself  present.  If  complaint  be  made  of  his  failure,  the  matter 
must  be  investiorated.  I  cannot  forthwith  consent  to  dismiss 
him,  because  this  boy  or  that  tells  me  he  does  not  perform 
his  duty.  The  pupils  must  be  examined  by  competent  persons, 
to  determine  their  progress  ;  and  a  thorough  investigation  only 
will  enable  me  to  decide  upon  his  merits,  or  his  qualifications 
to  do  that  which  I  cannot  do  myself.  If  he  were  to  ask  me 
for  instructions,  I  could  not  give  them.  I  should  say  to  him — 
"You  have  been  employed  for  this  duty  precisely  because  you 
were  supposed  to  know  how  it  could  best  be  done."  Now  this  is 
the  relation  in  which  the  Judge  stands  to  the  people.  The  Judge 
is  supposed  to  know  the  law  ;  the  people  are  known  not  to  know 
it.  He  is  to  exercise  his  judgment,  not  theirs — to  express  his 
opinions,  not  theirs.  Political  officers  are  usually  elected  for  a  very 
short  term,  and  in  reference  to  particular,  distinct,  well  understood 
questions.  They  have  a  certain  line  of  duty,  and  everybody 
understands  what  it  is.  But  it  is  not  so  in  the  case  of  the  Judere  ; 
his  position  is  perfectly  the  reverse,  in  all  these  particulars.  Above 
all,  it  differs  in  one  other  most  important  respect.  In  a  political 
officer,  you  look  for  a  politician ;  you  expect  him  to  act  for  those 
who  elected  him,  and  if  he  never  were  a  politician  before,  he  will 
surely  become  such,  by  serving  a  while  as  the  representative  of  the 
people.  Just  the  reverse  is  it  with  the  Judge.  He  must  not  act 
the  politician  ;  he  must  not  know  one  party  from  another  in  the 
discharge  of  his  duties  ;  and  if  he  had  been  ever  so  ardent  a  poli- 
tician before,  he  is  sure  to  cease  to  be  such,  in  a  very  short  time 
after  he  is  placed  upon  the  bench. 

The  objection  that  the  Governor  has  usually  selected  politicians 
for  the  Bench,  is  entitled  to  little  weight.  Let  us  maintain,  as  I 
have  already  intimated,  the  right  sort  of  tenure;  and  the  objection 
falls  to  the  ground.  Experience  proves  this.  We  have  been  proud 
of  such  men  as  Marshall  and  Story — we  are  proud  of  the  present 
Chief  Justice  Taney.  These  men  will  be  regarded  by  all,  as  dis- 
tinguished not  only  for  profound  legal  learning,  and  for  all  the 
varied  accomplishments  and  acquirements  professional  and  intel- 
lectual, which  would  entitle  them  to  the  first  rank  amongst  jurists  ; 
but  for  unblemished  integrity,  for  unspotted  purity,  for  every  thinor 
which  can  enter  into  the  composition  and  character  of  a  Judo-e. 


38 

Yet,  Sir,  these  men,  who  at  an  earlier  period  of  life,  had  been  in 
the  political  arena;  had  mingled  in  the  strifes  and  collisions  of  party 
differences;  were  appointed  by  those  who  were  at  the  head  of  the 
political  party  to  which  they  professed  allegiance.  Are  they  less 
useful  to  the  country,  on  that  account?  Do  their  decisions  evince 
an  infection  of  political  prejudice  or  partiality?  No,  Sir.  And  to 
a  Judge,  who  is  placed  upon  the  bench  during  good  behaviour, 
you  will  ever  look  in  vain,  for  the  evidence  of  such  infection. 
Why  should  he  yield  himself  an  instrument  of  wrong  and  injus- 
tice ;  and  soil  his  conscience,  with  a  foul  stain?  He  gains  nothing 
by  so  doing — can  gain  nothing.  He  will  scarcely  commit  wrong, 
for  the  mere  sake  of  wrong.  If  so  vile,  as  to  act  thus,  he  will 
be  wicked  enough  to  bring  himself  within  the  penalties  of  im- 
peachment, and  be  dismissed  and  disgraced. 

Mr.  President,  if  in  any  thing  I  have  said,  there  may  be  sup- 
posed by  any,  to  have  been  a  zeal  in  any  degree  arising  from  my 
personal  connexion  with  the  office  in  question ;  I  beg  to  assure 
them,  that  such  a  suspicion  does  great  injustice  to  my  position.  I 
have  served  in  a  high  judicial  station,  for  more  than  seventeen 
years,  with  what  success  or  usefulness,  I  am  the  last  of  all,  who 
are  acquainted  with  my  history,  to  pronounce.  This  I  can  say — it 
has  been  my  purpose  and  desire  to  discharge  the  important  trust 
confided  to  me,  with  fidelity  and  impartially,  and  to  the  best  of 
my  poor  abilities.  I  am  willing  to  abide  the  verdict  of  those,  who 
shall  come  after  me,  for  the  correctness  of  my  judicial  life.  For 
the  honor,  altoo-ether  unmerited,  and  the  flattering  confidence  of 
my  friends  and  the  community,  evinced  by  placing  me  in  this  and 
other  elevated  public  stations,  I  owe  a  lasting  debt  of  gratitude  ; 
a  debt  I  can  never  repay.  I  have  always  been,  and  ever  shall  be, 
ready  and  willing  to  acknowledge  it.  But,  as  to  a  mere  matter  of 
pecuniary  concern — so  far  as  the  account  of  dehtor-and-creditor  is 
involved — I  deny  that  any  balance  is  justly  chargeable  against  me. 
I  have  returned  to  the  State,  in  labor  and  service,  such  as  I  had 
contracted  to  render;  the  best  I  have  been  able  to  render;  the  full 
value  of  every  dollar  I  received.  I  have  passed  annually  most 
of  my  days,  in  tedious,  laborious  devotion  to  my  duties;  and 
for  a  long  succession  of  nights,  have  kept  my  head  from  my  pil- 
low, at  unseasonable  hours,  in  severe  mental  eflfort,  to  enable  me 
to  do  more  usefully  and  faithfully  my  whole  duty.  A  kind  Provi- 
dence has  possessed  me  with  a  competency  to  afford  all  the  com- 
forts of  life  which  my  habits  require ;  and  with  a  better  spirit  than 
that  which  regards  great  wealth,  as  the  end  and  object  of  human 


39 

desire,  or  the  source  of  human  happiness.  The  office  is  one  of 
extreme  labor  and  extreme  responsibility.  I  have  arrived  at  a  pe- 
riod of  life,  when  there  is  but  one  consideration  to  commend  it 
to  my  acceptance.  I  have,  from  early  life,  been  an  active,  work- 
ing man.  Of  all  things,  I  dread  a  life  of  indolence.  I  have  seen, 
on  more  occasions  than  one,  the  disastrous  effect  of  a  sudden 
withdrawal  from  active  labor,  by  men  in  advanced  life,  to  enjoy, 
as  they  had  hoped,  a  quiet  old  age.  I  have  seen  it  produce  dis- 
comfort, impotency,  disease  and  premature  death.  To  those 
around  me  yet  in  younger  life,  and  with  less  experience,  I  venture 
a  word  of  advice — Mever  cease  to  exert  the  faculties  of  mind  or 
body  which  Providence  has  given  you,  until  the  decree  of  that 
same  Providence  shall  deprive  you  of  these  faculties.  They 
are  talents  given  to  us,  to  be  usefully  and  actively  employed  ;  and, 
if  buried,  will  rust  and  decay.  But  to  a  man  able  and  willing  to 
be  employed,  there  are  always  avenues  open  ;  and  there  is  nothing 
so  attractive,  in  a  seat  on  your  Supreme  Court  bench,  either  as  it 
is  now  organized,  or  will  be,  under  any  of  the  various  provisions 
before  us,  as  to  make  it  the  particular  object  of  ambition.  So 
far  as  concerns  my  associates,  with  whom  I  have  acted  so  har- 
moniously, possessing,  as  they  do,  (I  have  no  doubt,)  and  justly 
possessing,  the  confidence  and  respect  of  the  community  ;  and 
to  whose  elevated  intelligence,  purity,  and  devoted  application, 
I  can  bear  that  testimony,  which  would  be  endorsed  by  all 
who  have  had  the  opportunity  to  appreciate  their  character — I 
have  only  to  say,  that  whatever  may  be  their  feelings,  or  their 
wishes — and  I  do  not  profess  to  be  informed — they  are  considera- 
tions not  to  be  thought  of,  in  a  matter  of  such  vast  magnitude  as 
this.  In  providing  for  the  interests  of  a  whole  community,  for  all 
time,  it  is  of  comparatively  small  moment,  to  estimate  the  effect 
to  be  produced,  upon  the  convenience  of  half  a  dozen  individuals, 
or  thrice  that  number.  With  regard  to  mere  party  considerations, 
I  am  urging  a  course,  which,  of  necessity,  for  the  present,  and  for 
a  long,  long  time,  must  prevent  the  elevation  of  those  with  whom 
I  have  poliiically  been  associated,  to  any  judicial  station.  This, 
too,  is  a  minor  consideration.  One  party  may  be  put  out,  and 
another  put  in ;  but  if  the  means  are  devised  to  secure  good  con- 
duct from  each,  the  State  is  safe,  the  rights  of  the  citizen  are  safe. 
In  a  little  time,  your  party  men  will  cease  to  be  such,  if  you  ap- 
point them  with  the  proper  tenure  of  office;  and  without  this,  you 
cannot  have  a  good  judge,  from  either  party.  With  this  fixed  tenure, 


40 

his  party  expectations,  and  his  party  aspirations  are  at  an  end  ; 
and  with  them,  his  party  feelings.  I  am  influenced,  therefore,  by 
no  considerations  of  a  personal,  social,  or  political  description  ; 
but  from  a  deep  and  solemn  conviction,  that  this  question  should 
be  determined,  by  infinitely  higher  and  more  enduring  considera- 
tions. The  step  proposed  to  us,  if  once  taken,  can  never  be  re- 
traced, whatever  may  be  the  mischiefs  it  entails  upon  us.  Revo- 
lutions never  go  back.  We  have  lived  happily  and  safely  under 
our  present  system  ;  then  why  change  it?  The  dangers  of  a  new 
system  cannot  be  fully  anticipated,  obvious  as  some  of  them  are; 
why  hazard  them  ?  I  have  been  in  States,  where  this  change  has 
been  made;  and  I  could  tell  of  some  things,  which  might  produce 
effect;  but  I  will  not,  because  I  am  unwilling  to  be  personally 
unkind,  or  seem  to  be  so.  But  I  will  say  that  the  result  of  my 
experience  is,  that  the  judiciary  has  lost  the  respect  of  the  com- 
munity in  the  proportion,  in  which  it  has  departed  from  this  fixed 
tenure.  The  principle  of  respect  for  the  law,  in  the  character  of 
the  Anglo-Saxon,  may  carry  us  on  well  enough  for  a  season,  but 
this  impetus  will  cease,  after  resistance  from  disturbing  causes. 
It  is  like  a  locomotive.  You  may  remove  the  motive  power,  and  the 
car  will  run  on  for  a  while  ;  but  the  resistance  from  friction  and  other 
causes,  will  produce  a  continually  decreasing  speed  until  it  comes 
to  a  stand  still.  Sir,  it  must  be  so  ;  these  temporary  appointees  will 
lose  their  character.  The  loss  of  that  respect,  which  is  essential  to 
their  usefulness,  will  follow  ;  and  their  ability  to  be  useful,  will  then 
soon  be  succeeded  by  a  condition  of  things,  in  which  they  will  be 
positively  mischievous.  It  may  not,  nay  I  hope  will  not  occur, 
Mr.  President,  in  your  day  or  mine;  but  why  should  we  gratuit- 
ously impose  upon  our  children,  and  our  posterity  a  yoke,  which 
we  cannot,  and  which  I  fear  they  never  can,  bear? 

Sir,  I  have  now  performed  the  duty,  I  had  proposed,  so  far  as 
my  own  views  of  this  subject  are  concerned.  In  conclusion  I 
propose  to  oflTer  those  of  o>fE,  whose  sound  intellect,  whose  ripe 
judgment,  whose  great  experience  and  profound  wisdom,  entitle  his 
opinions  to  infinitely  more  attention  than  any  I  could  offer.  The 
accomplished  and  eloquent  author  of  the  eulogy,  from  which  I  read 
—the  distinguished  Horace  Binney,  declares  : — "  These  sentiments 
are  worthy  of  the  profoundest  consideration.  They  were  the  last 
legacy  of  his  political  wisdom,  from  an  incorruptible  patriot,  and  one 
of  the  wisest  of  men.     Standing  as  it  were  on  the  verge  of  life, 


41 

free  from  all  mixture  and  stain  of  selfish  motive,  having  nothing 
to  hope,  nothing  to  fear  from  men,  they  are  the  parting  testimony  of 
his  pure  and  disciplined  reason.  They  are  worthy  of  being  written 
on  the  tables  of  the  heart;  and  if  elsewhere  they  maybe  disregarded 
in  the  spirit  of  change,  or  in  the  lust  of  experiment,  let  them  ani- 
mate us  to  preserve  what  we  have,  and  to  transmit  it  to  our  chil- 
dren." Such  is  the  character  of  the  last  counsel  given  to 
the  assembled  rulers  of  the  land  of  his  birth,  his  home,  his  affec- 
tions :  of  the  land,  in  which  he  was  soon  to  close  his  loner  and  use- 
ful  life.  And  here  are  the  words  he  uttered,  "  with  the  fervor  and 
almost  with  the  authority  of  an  Apostle" — the  words  of  Chief 
Justice  Marshall: — 

"  The  argument  of  the  gentleman  (he  said)  goes  to  prove  not  only 
that  there  is  no  such  thing  as  judicial  independence,  but  that  there 
ought  to  be  no  such  thing: — that  it  is  unwise  and  improvident  to 
make  the  tenure  of  the  judge's  office  to  continue  during  good 
behaviour.  I  have  grown  old  in  the  opinion  that  there  is  nothing 
more  dear  to  Virginia,  or  ought  to  be  more  dear  to  her  statesmen, 
and  that  the  best  interests  of  our  country  are  secured  by  it.  Ad- 
vert, sir,  to  the  duties  of  a  judge.  He  has  to  pass  between  the 
government  and  the  man  whom  that  government  is  prosecuting, — 
between  the  most  powerful  individual  in  the  community,  and  the 
poorest  and  most  unpopular.  It  is  of  the  last  importance,  that  in 
the  performance  of  these  duties,  he  should  observe  the  utmost 
fairness.  Need  I  press  the  necessity  of  this  .''  Does  not  every 
man  feel  that  his  own  personal  security,  and  the  security  of  his 
property,  depends  upon  that  fairness.  The  judicial  department 
comes  home  in  its  effects  to  every  man's  fire-side  ; — it  passes  on 
his  property,  his  reputation,  his  life,  his  all.  Is  it  not  to  the  last 
degree  important,  that  he  should  be  rendered  perfectly  and  com- 
pletely independent,  with  nothing  to  control  him  but  God  and  his 
conscience."  "  I  acknowledge  that  in  my  judgment,  the  whole 
good  which  may  grow  out  of  this  convention,  be  it  what  it  may, 
will  never  compensate  for  the  evil  of  changing  the  judicial  tenure 
of  office."  "  I  have  always  thought  from  my  earliest  youth  till 
now,  that  the  greatest  scourge  an  angry  heaven  ever  inflicted  upon 
an  ungrateful  and  a  sinning  people,  was  an  ignorant,  a  corrupt,  or  a 
dependant  judiciary." 

In  the  language  of  this  venerated  man,  I  unite  most  devoutly, 
in  the  prayer  to  a  merciful  God,  to  spare  us  from  that  "greatest 
scourge  an  angry  Heaven  ever  inflicted  upon  an  ungrateful  and  a 
sinning  people." 
6 


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